text:
    Shannon J. CLEMENT v. Dusty J. REEVES, Lafayette Parish Consolidated Government, Allstate Insurance Company, and ABC Insurance Company. Jessica Vidrine v. Lafayette Parish Consolidated Government and ABC Insurance Company.
    Nos. 07-1154, 07-1155.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 2008.

      Randall L. Guidry, G. Frederick See-man, Lafayette, LA, for Plaintiff-Appellant Jessica Vidrine.
    Matthew J. Ungarino, Robin L. Jones, Ungarino & Eckert, L.L.C., Lafayette, LA, for Defendant-Appellee Lafayette City-Parish Consolidated Government.
    D. Keith Wall, Marcantel, Marcantel, Wall, Pfeiffer & Stretcher, Jennings, LA, for Plaintiff-Appellant Shannon J. Clement.
   Court composed of GLENN B. GREMILLION, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.

PAINTER, Judge.

_[¿This matter was previously before us on remand from the Louisiana Supreme Court for briefing, argument, and opinion after Plaintiffs successfully sought supervisory writs regarding our initial finding that the trial court erred in denying summary judgment in favor of Defendant, Lafayette City-Parish Consolidated Government (LCG). On remand, we denied LCG’s writ application, finding that a genuine issue of material fact existed such that summary judgment was improper. See Clement v. Reeves, 05-616 (La.App. 3 Cir. 6/28/06), 935 So.2d 279. Following that opinion, LCG filed a second motion for summary judgment which was granted by the trial court. Plaintiffs appeal. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

We adopt the following statement of facts from our previous opinion:

This litigation stems from a December 20, 2002 automobile accident, which occurred in the 7200 block of Landry Road, located in a rural area of Lafayette Parish, at approximately 10:45 p.m. Shannon Clement, Jessie Vidrine, and Christina Chau were passengers in a truck driven by Dusty Reeves. Reeves, who was unfamiliar with Landry Road, lost control of his vehicle and crashed into a ditch when he failed to safely negotiate a ninety-degree turn. As a result, Clement, Vidrine, and Chau (plaintiffs) filed suit against LCG alleging that it failed to maintain the advance turn warning sign which would have warned Reeves of the approaching turn. These three suits were consolidated by the trial court. (Docket Number 2003-1906, consolidated with Docket Numbers 2003-3716 and 2003-6576).
In response, LCG sought summary judgment arguing that the plaintiffs could not prove that it had constructive notice of the downed sign prior to the accident or that it had a reasonable amount of time in which to repair the sign. It further argued that it was immune from liability under the Louisiana Homeland Security and Emergency Assistance and Disaster Act, as a state of emergency had been declared for the State of Louisiana and Lafayette Parish on October 1, 2002, in anticipation of Hurricane Lili. This state of emergency was extended | ^statewide for an additional forty-five days by Governor Mike Foster on October 31, 2002.
Following argument, the trial court denied LCG’s motion finding “too many loose facts floating around to be amenable to summary judgment at present.” A judgment denying the motion was rendered on April 21, 2005. Based on the trial court’s judgment, LCG sought and was granted supervisory writs from this court. A five judge panel granted the writ and made it peremptory using the following language:
We find that the trial court erred in its determination that there were genuine issues of material fact as to the knowledge element of the claim against the defendant-relator, Lafayette City-Parish Consolidated Government (LCG). The testimony offered by LCG was sufficient to shift the burden of proof to the plaintiffs-respondents, Shannon Clement, Jessica Vidrine, and Christina Chau. Clement provided one statement made by Terry Rabón, an LCG department of transportation employee, that could be construed as inconsistent 'with Ra-bon’s other testimony that the sign was up and visible at the time of the survey. No other factual support was provided by the plaintiffs. The one seemingly inconsistent statement by Rabón on which plaintiffs rely, falls well short of the showing of factual support required to avoid summary judgment. Accordingly, summary judgment is hereby granted and all claims against LCG are dismissed, with prejudice, at plaintiffs’ cost.
See unpublished writ Clement v. Reeves, 05-616 (La.App. 3 Cir. 8/19/05) (Thibodeaux, C.J., and Ezell, J., dissenting). Thereafter, the plaintiffs sought and were granted supervisory writs from the supreme court, with the matter being remanded to this court for briefing, argument, and opinion. See Clement v. Reeves, 05-2475, 05-2479, 05-2481 (La.3/31/06), 925 So.2d 1249, 1250.

Id. at 280-81.

On remand, we found as follows:

Although summary judgment is favored and should be construed to accomplish the just, speedy, and inexpensive determination of every action subject to it, all doubt must be resolved in favor of the party opposing the motion. La.Code Civ.P. art. 966(A)(2); Willis v. Medders, 00-2507 (La.12/8/00), 775 So.2d 1049. Here, we have Rabon’s testimony that he had no independent recollection of the sign in question, as well as the October 30, 2002 work order indicating that reinstallment of the sign was necessary. Opposing this, we have further testimony from Rabón that the sign was leaning only slightly when he surveyed it, because if it had been down he would have called the sign | struck to replace the sign that day. Thus, we find that Rabon’s statements present a genuine issue of material fact in that reasonable persons could reach different conclusions based on them. As LCG relies on these statements to absolve itself of liability, we think that it should be left to the trier of fact in a trial on the merits to determine whether he is credible. As the grant of summary judgment would be harsh in this instance, we find that it was properly denied.
Clearly, LCG was provided with immunity from negligence in its efforts to remedy the effects of Hurricane Lili during the state of emergency absent a showing of willful misconduct. Castille v. Lafayette City-Parish Consol. Gov’t, 04-1569 (La.App. 3 Cir. 3/2/05), 896 So.2d 1261, writ denied, 05-0860 (La.5/1305), 902 So.2d 1029. However, at the time the state of emergency ended, LCG was no longer afforded immunity by the Louisiana Homeland Security and Emergency Assistance and Disaster Act. Therefore, we find that the trial court properly denied its motion for summary judgment on this issue.

Id. at 284-285.

Following that decision by this court, LCG filed a second motion for summary judgment in the trial court. This motion alleged that LCG was entitled to immunity for any personal injuries that occurred as a result of LCG’s response to Hurricane Lili pursuant to La.R.S. 29:723 and La.R.S. 29:725 because the state of emergency had been extended by the parish president pursuant to La.R.S. 29:727 on November 27, 2002, which would encompass the date of the subject accident. In support of its motion, LCG filed, along with other evidence, copies of extensions of the state of emergency signed by the parish president and dated, October 1, 2002, October 29, 2002, November 27, 2002, and December 26, 2002. Based in part on these extensions, the trial court found that an actual emergency and a declaration existed such that LCG was entitled to immunity. The trial court, therefore, granted the motion for summary judgment. Plaintiffs now appeal.

[¿DISCUSSION

Law of the Case

Plaintiffs allege that the law of the case doctrine is applicable such that the trial court should not have entertained LCG’s second motion for summary judgment. Plaintiffs argue that this court’s previous opinion found that there must be not only a valid declaration of emergency in effect at the time of the accident, but also an actual existing emergency. LCG argues that this court addressed only the issue of whether a statewide state of emergency was still in effect on December 20, 2002, and found that it was not but that this is different than the issue which is currently before the court; i.e., whether the parish-wide extensions were validly extended even after the statewide state of emergency had lapsed.

Our prior opinion did state: “Thus the subject accident occurred after the state of emergency expired; moreover, the ‘actual or threatened condition’ of Hurricane Lili had obviously long been over by December 20.” Clement, 935 So.2d at 285. However, at that time, we did not have the parish president’s extension of the state of emergency for the parish before us. And, we also noted that “LCG was provided with immunity from negligence in its efforts to remedy the effects of Hurricane Lili during the state of emergency absent a showing of willful misconduct.” Id.

The law of the case doctrine is a discretionary rule:

Typically, following the “law of the case” doctrine, reargument of a previously decided point will be barred where there is simply a doubt as to the correctness of the earlier ruling. However, the law of the case principle is not applied in cases of palpable error or where, if the law of the case were applied, manifest injustice would occur. Ward v. Hermitage Ins. Co., 28,236 (La.App.2d Cir.4/3/96), 671 So.2d 1229, writ denied, 96-1141 (La.9/3/96), 678 So.2d 554; Richard v. Wal-Mart Stores, Inc., 29,-926 (La.App.2d Cir.10/31/97), 702 So.2d 79, writ denied, 97-3002 (La.2/6/98), 709 So.2d 744.

Rogers v. Horseshoe Entertainment, 32,-800, p. 5-6 (La.App. 2 Cir. 8/1/00), 766 So.2d 595, 600-01, writ denied, 00-2894, 00-2905 (La.12/8/00), 766 So.2d 463, 464.

In the Rogers case, the second circuit noted that:

[Bjased on the additional discovery, the additional arguments and authorities raised in the Weems motion, as well as the potential for manifest injustice by virtue of incongruent results created by the Weems motion, we conclude that the trial court’s decision to permit the Rogers to refile their motion for summary judgment was based on more than doubt; as such, the law of the case doctrine is inapplicable ... Moreover, we find no authority supporting Horseshoe’s argument that a trial judge cannot entertain a motion for summary judgment a second time.

Id. (citation omitted).

We find that the law of the case doctrine is inapplicable because we did not previously consider the existence, applicability, or validity of the parish president’s extensions of the parish-wide state of emergency-

Summary Judgment

We review the trial court’s grant of summary judgment in favor of LCG de novo, using the same criteria as the trial court. Hines v. Garrett, 04-806 (La.6/25/04), 876 So.2d 764. We must determine whether any genuine issues of material fact exist and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B) and (C).

The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. However, if the mover will not bear the burden of proof at trial, he need not negate all essential elements of the adverse party’s claim, but rather he must point out that there is an absence of factual support for one or more elements essential to the claim. La.Code Civ.P. art. 966(C)(2). Once the mover has met his initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. Id.

Butler v. DePuy, 04-101, p. 3 (La.App. 3 Cir. 6/9/04), 876 So.2d 259, 261 (citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730).

|f;As we noted in our prior opinion in this matter: “Here, the plaintiffs will bear the burden of proof at trial; thus, LCG is only required to point out that there is a lack of factual support for one or more elements essential to their claim.” Clement, 935 So.2d at 282.

In denying the prior summary judgment in these proceedings, we recognized that “[t]he accident in question occurred on December 20, 2002,” that “Governor Foster’s declaration of emergency expired on December 14, 2002,” and that “the subject accident occurred after the state of emergency expired.” Id. at 285. We also noted that “the ‘actual or threatened condition’ of Hurricane Lili had obviously long been over by December 20.” Id. Based on this, we found that “at the time the state of emergency ended, LCG was no longer afforded immunity by the Louisiana Homeland Security and Emergency Assistance and Disaster Act” and denied the motion for summary judgment. Id. However, a review of the record now before us indicates that the state of emergency had not, in fact, expired for the parish as it had been extended by the parish president.

Louisiana Revised Statutes 29:724 provides, in pertinent part, as follows:

A. The governor is responsible for meeting the dangers to the state and people presented by emergencies or disasters, and in order to effectuate the provisions of this Chapter, the governor may issue executive orders, proclamations, and regulations and amend or rescind them. Executive orders, proclamations, and regulations so issued shall have the force and effect of law.
B. (1) A disaster or emergency, or both, shall be declared by executive order or proclamation of the governor if he finds a disaster or emergency has occurred or the threat thereof is imminent. The state of disaster or emergency shall continue until the governor finds that the threat of danger has passed or the disaster or emergency has been dealt with to the extent that the emergency conditions no longer exist and terminates the state of disaster or emergency by executive order or proclamation, but no state of disaster or emergency may continue for longer than thirty days unless renewed by the governor.
L(2) The legislature, by petition signed by a majority of the surviving members of either house, may terminate a state of disaster or emergency at any time. This petition terminating the state of emergency or disaster may establish a period during which no other declaration of emergency or disaster may be issued. Thereupon, the governor shall issue an executive order or proclamation ending the state of disaster or emergency.

Louisiana Revised Statutes 29:727 provides, in pertinent part, as follows:

D. A local disaster or emergency may be declared only by the parish president, except as otherwise provided in this Chapter. In that event, the state of emergency shall continue until the parish president finds that the threat of danger has been dealt with to the extent that emergency conditions no longer exist. The state of emergency may be terminated by executive order or proclamation, but no state of emergency may continue for longer than thirty days unless extended by the parish president. The state of emergency or disaster may be terminated by the governor, a petition signed by a majority of the surviving members of either house of the legislature, or a majority of the surviving members of the parish governing authority. The document terminating the state of emergency or disaster may establish a period during which no other declaration of emergency or disaster may be issued. All executive orders or proclamations issued under this Subsection shall indicate the nature of the emergency, the area or areas which are or may be affected, and the conditions which brought it about. Any order or proclamation declaring, continuing, or terminating a local disaster or emergency shall be given prompt and general publicity and shall be filed promptly with the office of emergency preparedness and the office of the clerk of court.

Reading these two provisions together, we conclude that a parish president may extend a state of emergency for his parish, when the threat of danger continues to exist, even if the governor has not extended the state of emergency statewide so long as the governor has not issued an order or proclamation terminating the state of emergency and established a period during which no other declaration of emergency or disaster may be issued. In this case, the governor merely allowed the declaration of a statewide state of emergency resulting from Hurricane Lili to lapse while the parish president continued to extend the parish’s declaration of a state of emergency. LCG has submitted evidence to show that the parish’s declaration of a state of emergency was in effect on October 30, 2002, when LCG employees surveyed the |ssign in question and on December 20, 2002, when the subject accident occurred. LCG has also submitted evidence to show that clean-up, repair, and recovery efforts were ongoing at the time of the accident. Plaintiffs contend that the language in the extension to the effect that the “imminent threat of damage, injury and/or loss of property resulting from Hurricane Lili has abated” renders the extension invalid. However, La.R.S. 29:727 clearly states that “the state of emergency shall continue until the parish president finds that the threat of danger has been dealt with to the extent that emergency conditions no longer exist,” and “the extensions signed by the parish president in this case do indicate that the threat of damage, injury, and/or loss of property resulting from the aftermath of Hurricane Lili” still existed. Plaintiffs also contend that there is no proof that the publicity and filing requirements applicable to the extensions were met; however, no evidence was submitted in this regard.

In sum, Plaintiffs have failed to successfully rebut Defendant’s showing on its motion for summary judgment. Our review of the record shows that there is no remaining question of fact regarding the existence of an extension of the state of emergency effective at the time of this accident. We again recognize that “Clearly, LOG was provided with immunity from negligence in its efforts to remedy the effects of Hurricane Lili during the state of emergency absent a showing of willful misconduct. Castille v. Lafayette City-Parish Consol. Gov’t, 04-1569 (La.App. 3 Cir. 3/2/05), 896 So.2d 1261, writ denied, 05-0860 (La.5/1305), 902 So.2d 1029.” Clement, 935 So.2d at 285. Thus, we find that the trial court properly granted LCG’s motion for summary judgment regarding its immunity from civil liability in this instance.

|;,DECREE

For the above reasons, the trial court’s grant of summary judgment in favor of Defendant, Lafayette City-Parish Consolidated Government, and the dismissal of Plaintiffs’ claims with prejudice are affirmed. Costs of this appeal are assessed equally to Plaintiffs, Shannon Clement and Jessica Vidrine.

AFFIRMED.

      . We do note that following the decision on remand, Plaintiff, Christina A. Chau, filed a joint motion and order of dismissal, and her claim was dismissed in its entirety by order signed April 17, 2007.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT and Lafayette Utilities System v. ENTERGY GULF STATES, INC. and Entergy Corporation.
    No. 07-1065.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 2008.
    Rehearing Denied Feb. 27, 2008.

      John A. Braymer, Kenneth P. Carter, Baton Rouge, LA, for Defendants/Appellants, Entergy Gulf States, Inc. and Enter-gy Corporation.
    G. William Jarman Pamela R. Mascari Kean, Miller, Hawthorne, D’Armond, McCowan & Jarman, L.L.P., Baton Rouge, LA, James J. Adams, Fournet & Adams, Ltd., Lafayette, LA, for Plaintiffs/Appel-lees, Lafayette City-Parish Consolidated Government, Lafayette Utilities System, and the City of Lafayette.
   Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.

GENOVESE, Judge.

11 This is an appeal from a judgment permitting Lafayette City-Parish Consolidated Government and Lafayette Utilities System (hereinafter collectively referred to as “Lafayette”) to expropriate electrical distribution facilities owned and operated by Entergy Gulf States, Inc. and Entergy Corporation (hereinafter collectively referred to as “Entergy”) within the corporate limits of the City of Lafayette, Louisiana. Entergy appeals the taking, challenges the amount awarded for the taking, and seeks attorney fees and court costs. For the following reasons, we affirm.

FACTS

On September 9, 1999, Lafayette filed a Petition for Expropriation against Entergy seeking to take all of Entergy’s electrical distribution system lying within the corporate limits of the City of Lafayette. In its brief-to this court, Lafayette points out that “the property subject to this expropriation is distribution property only. The property consists of electrical distribution facilities (e.g., poles, transformers, conductors, wires, servitudes, meters, streetlights, etc.) and related customers currently serviced and/or owned by Enter-gy within sixteen (16) separate parcels of immovable property.”

Entergy answered Lafayette’s petition, challenging the right of Lafayette to expropriate its facilities and arguing that there was no public necessity nor would the taking be in the public’s best interest.

Trial in this matter was held on April 3, 4, 5, and 6, 2006. The trial court initially received evidence on the issue of whether Lafayette had the right to take or expropriate all of Entergy’s electrical distribution system lying within the corporate 1 glimits of the City of Lafayette. After receiving evidence during the taking phase, the trial court, in its oral reasons for judgment, stated:

[Rjuling on whether or not this is a public necessity for the expropriation purpose, I find that it is a public necessity and it is for a public purpose. And just numerating [sic] my reasons, I’ve used [La.R.S.] 19:102 and the Constitutional Article 1[,] Section 4 as well. What I find in the expropriation of the 16 parcels serviced by Entergy at this point that LUS is attempting to expropriate, it benefits the public by deriving — the public derives the benefit because of monies received through LUS which supplements the budget of Lafayette Consolidated Government.
Further, it seems as if they have a more customer service oriented type of business. The situation they’re faced with at this point is for future expansion in that area with the franchise set up the way it is that .Lafayette Consolidated Government or LUS would have to service any expansion in that area as it is, so it would be duplicate of [sic]- services. Also, Lafayette showed they have a loop system which is showing to be more reliable by the number produced in court and have slightly lower rates.... I think it’s in the best interest of the City of Lafayette to expropriate this utility service in these 16 parcels.

Immediately thereafter the compensation phase of the trial was held. At the end of the compensation phase, the trial court took the matter under advisement. On May 12, 2006, the trial court issued a Judgment of Expropriation whereby it decreed, in pertinent part:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Lafayette and against Entergy, decreeing the following:
c) The fair market value of the electrical distribution facilities described above is EIGHT HUNDRED FORTYHFOUR THOUSAND TWO HUNDRED TWENTYHTWO AND NO/100 ($844,222.00) DOLLARS.
d) Based on a stipulation of the parties, severance damages total FOR-TYHEIGHT THOUSAND FIVE HUNDRED AND NO/100 ($48,-500.00) DOLLARS.
13e) Based on a stipulation of the parties, consequential damages total EIGHTY-SEVEN THOUSAND TWO HUNDRED AND NO/100 ($87,200.00) DOLLARS.
f) That at such time as Lafayette deposits into the Registry of the Court the sum of NINE HUNDRED SEVENTYHNINE
THOUSAND NINE HUNDRED TWENTY-TWO AND NO/100 ($979,922.00) DOLLARS (“Deposit”) for the use and benefit of En-tergy, Lafayette shall be and it is hereby awarded, adjudicated, granted and assigned the electrical distribution facilities described herein.

II.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Enter-gy pay all court costs and expert fees incurred in this proceeding, as follows:

a) Court costs in the sum of $5,155.50 (costs accrued through April 25, 2006).
b) Expert fees in the amount of FOUR[ JTHOUSAND FOUR HUNDRED SIXTY-NINE AND 95/100 ($4,469.95) DOLLARS, representing the fees charged by Nancy Heller Hughes ($4,009.95) and Ralph Larkins ($460.00) for time spent in court in relation to this matter.

Entergy filed a Motion for New Trial on June 2, 2006. In its motion, Entergy requested a new trial on the issues of court costs and expert fees only. Entergy’s motion asserted “The Judgment of Expropriation executed by this Court awarded court costs in the sum of $5,155.50 and expert fees in the total amount of $4,469.95 contrary to applicable expropriation law of [La.R.S.] 19:101 et seq.” In addition, En-tergy requested “a Rule to Show Cause why attorney! ] fees should not be awarded to Entergy ... as provided for in [La.R.S.] 19:109.... ” On July 31, 2006, the trial court denied Entergy’s Motion for New Trial and Rule to Show Cause. A judgment to this effect was signed by the trial court on August 4, 2006. Entergy devolu-tively appeals.

| ASSIGNMENTS OF ERROR

In its appeal, Entergy asserts five assignments of error:

1. The trial court erred in finding that Lafayette satisfied its burden of showing that this expropriation serves a public purpose and is necessary for the public purpose.
2. The trial court erred in finding that the fair market value of the property being taken, in addition to the customers and income stream generated by those customers, is $844,222.
3. The trial court erred in not awarding Entergy attorney fees and costs due to the fact that the amount awarded at trial, $979,922, was more than double the amount offered by Lafayette prior to commencing the litigation, and $220,000 more than an offer made in 2004, 5 years after the litigation began.
4. The trial court erred by precluding defendant’s expert from testifying because he was not a “certified” utility property appraiser.
5. The trial court erred in not awarding Entergy an amount of money necessary to compensate it for the taxes it would have to pay on the monies received for the expropriated property.

STANDARD OF REVIEW

The standard of appellate review of factual findings in a civil action is the manifest error/clearly wrong standard, and factual findings should not be reversed absent manifest error or unless they are clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the reviewing court may not reverse. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990). Consequently, when there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous. Id

Moncrief v. Succession of Armstrong, 05-1584, p. 10 (La.App. 3 Cir. 9/27/06), 939 So.2d 714, 720.

| .LAW AND DISCUSSION

Louisiana Constitution Article 1, § 4 (emphasis added) provides in pertinent part:

(A) Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of the police power.
(B)(1) Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit....
(2)As used in Subparagraph (1) of this Paragraph ... “public purpose” shall be limited to the following:
(a) A general public right to a definite use of the property.
(b) Continuous public ownership of property dedicated to one or more of the following objectives and uses:
(v) Public utilities for the benefit of the public generally.
(3) Neither economic development, enhancement of tax revenue, or any incidental benefit to the public shall be considered in determining whether the taking or damaging of property is for a public purpose pursuant to Subpara-graph (1) of this Paragraph....
(4) Property shall not be taken or damaged by any private entity authorized by law to expropriate, except for a public and necessary purpose and with just compensation paid to the owner; in such proceedings, whether the purpose is public and necessary shall be a judicial question.
(5) In every expropriation or action to take property pursuant to the provisions of this Section, a party has the right to trial by jury to determine whether the compensation is just, and the owner shall be compensated to the full extent of his loss. Except as otherwise provided in this Constitution, the full extent of loss shall include, but not be limited to, the appraised value of the property and all costs of relocation, inconvenience, and any other damages actually incurred by the owner | ^because of the expropriation.
(6) No business enterprise or any of its assets shall be taken for the purpose of operating that enterprise or halting competition with a government enterprise. However, a municipality may expropriate a utility within its jurisdiction.

Louisiana Revised Statutes 19:102 (emphasis added), which relates to expropriation by municipal corporations, provides:

Where a price cannot be agreed upon with the owner, any municipal corporation of Louisiana may expropriate property whenever such a course is determined to be necessary for the public interest by the governing authority of the municipality; provided, however, in case of the acquisition of any electric light, gas or waterworks property or plant, or of any railroad property, such determination shall not be conclusive as to whether the purpose of the taking is necessary, which, if contested, is a judicial question to be decided independently by the trial judge. Where the same person is the owner of gas, electric light, and waterworks plants, or of more than one of any one kind of plant, the municipal corporation may not expropriate any one of the plants without expropriating all of the plants within its jurisdiction owned by the same person.

Right to Take

Entergy argues that Lafayette failed to meet its burden of proving that its taking would serve a necessary public purpose. Entergy cites City of Thibodaux v. Louisiana Power & Light Co., 126 So.2d 24 (La.App. 1 Cir.1960) and Louisiana Power & Light Co. v. City of Houma, 229 So.2d 202 (La.App. 1 Cir.1969), in support of its position that the trial court incorrectly relied upon Lafayette’s assertion that it would offer lower rates as a factor which could be considered a public benefit. Lafayette contends that these cases do not support the position advocated by Enter-gy. We, likewise, find both cases inappo-site.

In Thibodaux, the city was granted the right to expropriate defendant’s electrical distribution system. The defendant raised as a defense the likelihood that the city would charge higher rates to its customers. The entirety of the first circuit’s |7opinion relative to this issue is as follows: “The possibility that the municipality might charge higher rates than the former owner and operator of the utilities is not restrictive of the municipality’s power to expropriate.” Thibodaux, 126 So.2d at 36.

In Louisiana Power & Light, a utility company sought to expropriate a distribution facility owned by a municipality. The municipality advanced the exception of no right of action which the trial court sustained and the first circuit affirmed. This case dealt with the expropriation powers granted in La.R.S. 19:2. We find Enter-gy’s reliance on this case is also misplaced.

Lafayette presented testimony that it can provide more reliable service and cheaper rates for its citizens as well as provide additional funds for community services. Mr. Terry Huval, Director of Utilities for Lafayette Utilities System (LUS), testified that LUS generates substantial income. According to Mr. Huval, the money that flows from the utility system to the city-parish government “provide[s] police protection, fire protection, public works, maintenance activities, community development, and all other costs to run the government.” These services directly benefit the public. In fact, during the ten-year period from October 1996 through October 2005, Mr. Huval testified that LUS contributed $140,402,405.00 to the parish government’s general fund, of which $109,306,262.00 was attributed to the sale of electricity.

Mr. Frank Ledoux, Engineering and Power Production Manager for LUS, testified extensively with regard to Lafayette’s ability to provide more reliable service. Mr. Ledoux compared and explained the system advantage interruption | ^frequency index (SAIFI), which measures the frequency of outages, and the system average interruption duration index (SAIDI), which measures the duration of outages. According to Mr. Ledoux’s comparison of the records of LUS and Entergy in the area, Lafayette experienced fewer and shorter outages than Entergy. According to these reports, Mr. Ledoux testified that after this expropriation, more reliable service will be provided through looped main line systems rather than the dead-end distribution systems currently employed by Enter-gy, resulting in fewer outages of shorter duration. Mr. Ledoux also explained how the expropriation will assist with planned growth and how a single provider of electrical services within the city limits minimizes duplication of electric facilities and improves response in cases of fire, outages, and repairs.

Entergy’s Regional Manager, Mr. Greg Guilbeau, testified as to his duties which included the maintenance of the existing distribution lines. Mr. Guilbeau testified that many of its electrical distribution lines are in rural areas where animals, such as cows, contribute to the number of outages. Further, the duration of outages is affected by the inability to easily access the electrical distribution lines in rural areas. When questioned on cross-examination as to whether Entergy could accept any new customers in the areas at issue herein, Mr. Guilbeau admitted that Entergy could not. According to Mr. Guilbeau, Entergy cannot expand within the city limits because it does not have a franchise agreement with Lafayette which would allow Entergy to accept new customers. Further, Mr. Guil-beau admitted that more than half of En-tergy’s customers living within the areas at issue herein would have no backup system if a break occurred due to the absence of a looping system north of the Holiday substation.

|9Ms. Liz Duhon, Entergy’s Customer Service Manager, also testified. According to Ms. Duhon, Entergy offers similar services to its customers in times of hardship and provides comparable access to customers when addressing service matters.

As set forth above, we find that the record amply supports the trial court’s judgment that Lafayette satisfied its burden of proving that the expropriation serves a public purpose and that said purpose is necessary for the public interest. Our review indicates that the trial court was presented with two permissible views of the evidence. Our review further indicates that the trial court was presented with a rational basis of facts upon which it could have rendered its determination. Where a rational basis exists for the factfinder’s determination, particularly considering the two permissible views, our standard of appellate review, the manifest error or clearly wrong standard, dictates affirmation of the fact-finder’s rational assessment of the evidence. See Welsh v. Oakdale Cmty. Hosp., 03-1014 (La.App. 3 Cir. 2/18/04), 866 So.2d 1072, writ denied, 04-682 (La.4/30/04), 872 So.2d 499. Therefore, we find no merit in Entergy’s argument that the trial court erred in its determination that Lafayette proved its taking served a necessary public interest.

Fair Market Value

Entergy asserts that $844,222.00 is not the fair market value of the electrical distribution facilities. Entergy argues that the trial court’s use of the income approach instead of the market approach, which contemplates comparable sales, was erroneous.

Lafayette’s expert witness, Ms. Nancy Hughes, was accepted by the trial court as an expert in utility appraisal and valuation. Ms. Hughes received her Masters of Business Administration from the University of Chicago and obtained the designation |inof Accredited Senior Appraiser (ASA) from the American Society of Appraisers. Ms. Hughes is one of only thirty-two individuals in North America who hold the ASA designation and is eminently qualified.

According to Ms. Hughes, when she values utility property, she develops indicators of value using all three approaches of value, i.e., the cost approach, the income approach, and the market approach. She described the three approaches of value as follows:

The cost approach is looking at it from an inventory engineering perspective, a cost approach. The income value looks at it from some sort of a net earnings, and market is looking at other sales. So with the cost approach, you’re looking at what’s the value of producing a substitute property.

With respect to the market approach, Ms. Hughes further explained:

The market is the approach that most people are familiar with because everyone gets an appraisal of their house and real estate is done with a market approach. This is where you make comparison to actual market sales. It is critical that there’s an active market. And then you have to have comparable sales transactions.... It needs to be similar size and type of property under similar circumstances.

However, Ms. Hughes opined that the market approach is a difficult approach to apply to utility property because an active market typically does not exist, and even when you have sales of utility properties, “there’s usually an issue of lack of comparability.” For these reasons, Ms. Hughes did not articulate a figure based upon the market approach.

Regarding the cost approach, Ms. Hughes personally inventoried the property. She spent one week examining every pole “with the exception of one pole that was at the back of one of the parcels, and there was a big dog.” Ms. Hughes assigned a value of $565,200.00 using the cost approach; however, Lafayette and Enter-gy ultimately stipulated to a value of $693,235.00 for the utility property at issue using Inthe cost approach.

With respect to the income approach, she explained that Entergy is a regulated entity that is allowed a certain rate of return on its investment and that said rate of return essentially equals the weighted average cost of capital. In order to determine an income approach, Ms. Hughes took the average net operating income associated with the sixteen parcels at issue herein and capitalized that at 9.46 percent for the remaining twenty-eight years on Entergy’s franchise. From that formula, she arrived at a figure of $844,222.00 as the value for the utility property in this case using the income approach. Ms. Hughes considered the case of City of Thibodaux v.Louisiana Power & Light Co., 373 F.2d 870 (5 Cir.), cert. denied, 389 U.S. 975, 88 S.Ct. 476, 19 L.Ed.2d 468 (1967), wherein the United States Fifth Circuit held that “capitalization of present income was a proper approach to the question of market value....” Id. at 872.

Based on Ms. Hughes’s testimony, the trial court accepted the income approach and the $844,222.00 figure presented by Ms. Hughes as the fair market value of the property at issue herein. Entergy now complains about Ms. Hughes’s failure to provide a value for the market approach. Entergy contends: “The trial court had ample evidence of at least 3 prior sales of utility customers ... on which to rely in valuing the property.” We disagree.

Our review of the testimony clearly indicates that Ms. Hughes, the only expert appraiser to testify, considered all three approaches to valuation and arrived at two different appraisal estimates. The trial court accepted the testimony of Ms. Hughes, and Entergy presented no acceptable expert to refute her findings. It is distinctly within the province of the trial court to assess the credibility of expert witnesses and the weight to assign to their testimony. City of Lafayette v. Dore, 460 So.2d 755 (La.App. 3 Cir.1984). We find no abuse of the trial court’s discretion in its reliance upon Ms. Hughes’s testimony, nor in its failure to arrive at a fair market value using the market approach when no authority for doing so was offered at the trial.

Attorney fees

Louisiana Revised Statutes 19:109(A) (emphasis added) provides, in relevant part:

Immediately after compensation has been determined, the plaintiff shall, upon motion of the defendant, present evidence as to the highest amount it offered the defendant for the property prior to trial on the merits. After hearing evidence on the issue, the court shall determine the highest amount offered. If the highest amount offered is less than the compensation awarded, the court may award reasonable attorney fees.

In its third assignment of error, Enter-gy argues that the trial court erred in not awarding it attorney fees and costs “due to the fact that the amount awarded at trial, $979,922, was more than double the amount offered by Lafayette prior to commencing the litigation, and $220,000 more than an offer made in 2004, 5 years after the litigation began.” In its brief, Entergy claims that Lafayette made two offers: the first on August 3, 1999 involving only twelve of the sixteen parcels and for the amount of $435,894.00; the second on July 1, 2004 involving all sixteen parcels and for the amount of $759,779.00. Further, En-tergy cites La.R.S. 19:113 and La.R.S. 19:12 to argue that Lafayette is responsible “for costs where the tender is made by the expropriating authority to the land owner prior to suit.”

Lafayette contends that on January 20, 2005, it offered $1.2 million to Entergy | ^.pursuant to a Formal Offer of Settlement. Lafayette argues that the trial court correctly denied Entergy’s Motion for New Trial and its request for attorney fees based on the fact that its January 2005 Offer of Judgment was the highest amount it offered to Entergy, that said amount exceeded the amount awarded to Entergy by the trial court, and that said offer was made prior to trial. We agree.

Entergy, in its brief to this court, concedes that such an offer was, in fact, made. Entergy seemingly confuses the issue of when an offer must be made. Further, Entergy’s reliance upon La.R.S. 19:113 and La.R.S. 19:12 is misplaced. These statutes pertain to offers made “before proceeding to a forced expropriation.” Such is clearly not the case herein. The pertinent statute, La.R.S. 19:109, clearly dictates that the highest amount offered “prior to trial on the merits” is relevant, not the highest amount offered prior to suit being filed. In this case, Lafayette clearly made an offer prior to trial which exceeded the amount awarded by the trial court. Therefore, we reject Entergy’s third assignment of error.

Exclusion of Entergy’s Expert

Next, Entergy challenges the trial court’s exclusion of its expert, Mr. George Fitzpatrick. Entergy tendered Mr. Fitzpartick as an expert in electric utility economic valuation; however, the trial court excluded Mr. Fitzpatick’s testimony pursuant to Lafayette’s Motion in Limine.

Lafayette correctly argues that the trial court’s exclusion of Mr. Fitzpatrick as a witness was clearly within the discretion of the trial court since (1) the trial court was required to determine the fair market value of Entergy’s electrical distribution system, (2) Mr. Fitzpatrick was not a certified appraiser, and (3) Mr. Fitzpatrick admitted that he was not trying to seek fair market value of the property. Therefore, |14we find that the trial court did not err or abuse its discretion in excluding Mr. Fitzpatrick as a witness pursuant to the provisions of La.Code Evid. art. 702 since his testimony would have been neither relevant nor reliable.

Louisiana Code of Evidence Article 702 provides, in relevant part, “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” An expert’s testimony must not only be reliable, it must also be relevant. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); State v. Foret, 628 So.2d 1116 (La.1993).

Applying the principles in Daubert and Foret, and the law in La.Code Evid. art. 702, we find no error in the trial court’s exclusion of the testimony of Mr. Fitzpatrick.

Award for Taxes

In its final assignment of error, Entergy complains that the trial court’s award did not contemplate the tax consequences it would incur because of the expropriation. Entergy offered the testimony of Mr. Rory Roberts, its Director of Income Tax Accounting and Compliance. Mr. Roberts testified that Lafayette’s expropriation, and subsequent payment to Entergy, would create a taxable event requiring Entergy to pay federal and state income taxes. According to Mr. Roberts, Entergy’s tax liability at the time of trial was 38.48 percent. Therefore, based on the $979,922.00 awarded to Entergy by the trial court for the expropriated property, Entergy will have a tax consequence of $377,073.98. In its brief, Entergy states: “The court’s failure to award this amount, in addition to the other amounts awarded was error and should be remedied by this court.”

| ir,Lafayette argues that Entergy’s position is tantamount to imposing a penalty on Lafayette for exercising its statutory right to expropriate for the public good. Lafayette’s expert witness, Mr. Ralph Smith, a certified public accountant, was accepted by the trial court as an expert in the field of public utilities accounting. According to Mr. Smith, what would be considered a gain, or as Mr. Roberts stated, a taxable event, in year one, would be returned to the rate payers in year two and considered an expense. Therefore, Lafayette asserts that “it was reasonable for the court to conclude that, even if taxes are due as a result of this expropriation, En-tergy would not incur a tax cost.”

With neither legislation nor jurisprudence allowing for Entergy’s recovery of income taxes in a case such as this, we forego granting such an award. Consequently, we reject Entergy’s fifth and final assignment of error. In all respects, we find no manifest error in the trial court’s judgment.

DECREE

For the foregoing reasons, we affirm the trial court’s judgment in all respects. Defendants-Appellants, Entergy Gulf States, Inc. and Entergy Corporation, are assessed with all costs of this appeal.

AFFIRMED.

      . Lafayette Utilities System (LUS) is the trade name for the department of utilities within the Lafayette City-Parish Consolidated Government. LUS provides electric, water, wastewater, and telecommunication services.

      . Louisiana Revised Statutes 19:113 provides “If a tender is made of the true value of the property to the owner thereof, before proceeding to a forced expropriation, the costs of the expropriation proceedings shall be paid by the owner.”

      . Louisiana Revised Statutes 19:12 provides "If a tender is made of the true value of the property to the owner thereof, before proceeding to a forced expropriation, the costs of the expropriation proceedings shall be paid by the owner.”


text:
    LOUISIANA BAG COMPANY, INC. and LaPac Manufacturing, Inc. v. AUDUBON INDEMNITY COMPANY.
    No. 07-1103.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 2008.

      Robert A. Robertson, Allen & Gooch, Lafayette, Louisiana, for Plaintiffs/Appellants, Louisiana Bag Company, Inc., and LaPac Manufacturing, Inc.
    Robert I. Siegel, Gieger, Laborde & La-perouse, L.L.C., New Orleans, Louisiana, For Defendant/Appellee, Audubon Indemnity Company.
   Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.

GENOVESE, Judge.

| plaintiffs are appealing the dismissal of their claim for penalties and attorney fees pursuant to La.R.S. 22:658 against Defendant, their commercial property insurer, as a result of a fire loss claim. For the following reasons, we reverse and render.

FACTS

On April 20, 2003, a fire destroyed the manufacturing plant and warehouse facilities of Plaintiffs, Louisiana Bag Company, Inc. and LaPac Manufacturing, Inc. (collectively referred to herein as Louisiana Bag). At the time of the occurrence, Louisiana Bag was insured through a commercial lines policy of property insurance issued by Defendant, Audubon Indemnity Company (Audubon). The policy of insurance provided coverage for the manufacturing plant, the warehouse facilities, and the movables located on the premises against the risk of fire. The Audubon policy provided the following coverage: (1) $1,285,240.00 for the building; (2) $2,000,-00.00 for the stock; (3) $61,345.00 for the contents; (4) $23,874.00 for the Electronic Data Processing (EDP) owned equipment; and (5) $2,500.00 for media. Audubon issued a total of five payments to Louisiana Bag in the course of adjusting the claim. However, when the insurer failed to pay the balance of the unpaid policy limits, Louisiana Bag instituted the instant litigation, asserting its entitlement to the unpaid policy limits, as well as an award of penalties and attorney fees for Audubon’s failure to comply with the statutory time limits pursuant to La.R.S. 22:658.

Following a bench trial on March 13, 2007, the trial court found that Louisiana Bag had failed to prove arbitrary and capricious conduct on the part of Audubon. Thus, judgment was rendered in favor of Audubon dismissing all of the claims | ^asserted by Louisiana Bag. It is from this judgment that Louisiana Bag appeals.

ISSUES

Louisiana Bag presents the following issues for our review:

I. Whether the Trial Court erred in accepting [Audubon’s] position that “proof of loss” is a document which must be issued by the insurer rather than a moment in time when the insurer obtains sufficient information to act on a claim; and further erred in failing to find that [Audubon] had satisfactory proof of loss either from the inception of the claim, or in the alternative, by August, 2003[;]

II. Whether the Trial Court erred in failing to find that [Audubon] had a duty to tender the undisputed portions of the claim within thirty days of proof of loss[;]

III. Whether the Trial Court erred in its determination that [Audubon] was not arbitrary and capricious in its inability or unwillingness to locate, read and interpret the clear language of its own poliey[; and]

IV. [Whether t]he Trial Court erred in finding that the issue of damage to the concrete slab was sufficient to withhold payment of the entire claim.

LAW AND DISCUSSION

Standard of Review

Our review of the trial court judgment denying Louisiana Bag’s claim for penalties and attorney fees is governed by the manifest error or clearly wrong standard of review. Reed v. State Farm Mut. Auto. Ins. Co., 03-107 (La.10/21/03), 857 So.2d 1012; Calogero v. Safeway Ins. Co., 99-1625 (La.1/19/00), 753 So.2d 170; Gibson v. Allstate, 02-892 (La.App. 3 Cir. 12/11/02), 832 So.2d 1209.

Statutory Penalty Provision

Louisiana Revised Statutes 22:658, effective August 15, 2003, provided in Impertinent part as follows:

A. (1) All insurers issuing any type of contract, other than those specified in R.S. 22:656, 657, and Chapter 10 of Title 23 of the Louisiana Revised Statutes of 1950, shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured or any party in interest. The insurer shall notify the insurance producer of record of all such payments for property damage claims made in accordance with this Paragraph.
(4) All insurers shall make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim.
B. (1) Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor or failure to make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim, as provided in Paragraphs (A)(1) and (4), respectively, or failure to make such payment within thirty days after written agreement or settlement as provided in Paragraph (A)(2), when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of twenty-five percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater,....

Proof of Loss

Louisiana Bag contends that the trial court erroneously concluded that “proof of loss” was a document issued by Audubon which triggered the statutory delays for payment, rather than that certain point in time in adjusting the claim that Audubon had sufficient information to act on the claim and render payment. It is the contention of Louisiana Bag that Audubon had satisfactory proof of loss from the inception of the claim, or alternatively, by August of 2003.

Louisiana Revised Statutes 22:658 does not provide a definition of “proof of loss.” Guidance may be found in the jurisprudential application of La.R.S. 22:658 and similar penalty provisions. A seminal case on proof of loss is that of McDill v. Utica Mutual Insurance Co., 475 So.2d 1085 (La.1985), which dealt with a claim Ragainst an uninsured/underin-sured motorist liability insurer. In McDill, our supreme court phrased the issue before it as whether the plaintiff carried his burden of providing the insurer with “sufficient proofs of loss.” Id. at 1089. Citing Hart v. Allstate Insurance Co., 437 So.2d 823 (La.1983), the supreme court defined a “satisfactory proof of loss” as “that which is sufficient to fully apprise the insurer of the insured’s claim.” Id. Additionally, in a matter involving a suit against a fire insurer for penalties and attorney fees, the fourth circuit made the following observation regarding “proof of loss”:

[I]t is not necessary for proof of loss to be in writing or in any other formal style, Sevier v. United States Fidelity & Guar., 497 So.2d 1380, 1384 (La.1986) [“proof of loss” under Section 658 is a flexible requirement to advise the insurer of the facts of the claim, it is not required to be in any formal style]; Hut of Louisiana, Inc. v. Zurich Ins. Co., 372 So.2d 687, 688 (La.App. 1st Cir. 1979), rehearing den., ... See Sevier v. United States Fidelity & Guar., 497 So.2d at 1384 [“As long as the insurer receives sufficient information to act on the claim, ‘the manner in which it obtains the information is immaterial’ ”]; McDill v. Utica Mutual Ins. Co., 475 So.2d 1085 (La.198[5]); Landry v. State Farm Ins. Co., 529 So.2d 417 (La.App. 1st Cir.1988); See Deville v. Louisiana Farm Bur. Mut. Ins. Co., 378 So.2d 457, 460 (La.App. 3d Cir.1979), rehearing den.

Warner v. Liberty Mut. Fire Ins. Co., 543 So.2d 511, 517 (La.App. 4 Cir.1989). For the reasons which follow, we find that Audubon was provided with satisfactory proof of loss of the damage sustained to the building, its contents, and of the damage resulting from the loss of the stock asserted by Louisiana Bag at least by the end of August of 2003.

The fire giving rise to the subject litigation occurred on April 20, 2003. On April 22, 2003, Mr. Bill Adams, an outside independent adjuster retained by Audubon, went to the location of the insured premises and inspected the loss. Mr. Adams stated he did not know that the loss to Louisiana Bag caused by the fire was a total loss, but that “it was evident that it would be more than a million dollars.” | r,Within days, on April 25, 2003, Mr. Adams issued a report to Audubon on his sight investigation wherein he stated that “it appears at this time the insured has a loss well in excess of the policy limits for building, stock, et cetera, and the deductible can be applied to • the overall loss.” This initial report, and the reports which followed, were sent by Mr. Adams to Mr. Lorenzo Spencer, the examiner with Audubon to whom Mr. Adams was reporting.

A second report was issued to Audubon by Mr. Adams on May 27, 2003. Mr. Adams advised Mr. Spencer again that “it appears at this time the insured has a loss well in excess of the limits.”

In order to further evaluate the loss sustained by Louisiana Bag, Audubon retained various experts. Unified Investigations and Sciences (Unified Investigations) was consulted regarding the cause and origin of the fire to rule out arson or some other cause of the fire for potential subro-gation claims. Arson was ruled out early in the investigation and did not remain an issue. Unified Building Services (UBS), building consultants hired by Audubon, was retained to compute a replacement figure for the destroyed building. In the course of determining the amount of damage to the building, the question of the viability of the concrete slab arose. Audubon then hired an engineer to ascertain the degree of damage to the slab. Additionally, since all of the stock of Louisiana Bag was destroyed in the fire, Audubon hired Buchanan, Clarke, and Schlader (BCS), forensic accountants, to calculate the amount of stock, and the value thereof, that was on location at the time of the loss.

On June 20, 2003, Mr. Adams issued a third report to Audubon. Attached thereto were the invoices of Unified Investigations and BCS. Also attached was a contents inventory, which had been provided by Louisiana Bag, and a June 18, 2003 report of BCS, which provided the stock valuations. Using two different methods of | (¡calculation, BCS computed a stock value of $3,639,148.00, and alternatively, of $3,601,931.00. Additionally, by this date, Mr. Adams had been verbally informed by UBS that the building loss was approximately $1,500,000.00. In this third report, Mr. Adams again advised Audubon that the damages exceeded the policy limits and that it appeared that there had a been a total loss. Mr. Adams also attached a demand which had been made by Louisiana Bag for payment under the policy.

On July 8, 2003, Audubon issued an advance payment to Louisiana Bag of $1,000,000.00. Mr. Adams testified that he had not yet made any formal recommendations to Mr. Spencer regarding the payment of policy limits at this time. However, this partial payment represented “the bare minimum that [he] thought it could be....”

A fourth report was issued by Mr. Adams to Mr. Spencer on July 17, 2003, which provided the same estimations of loss which had been provided in the three prior reports. Along therewith, Mr. Adams provided Mr. Spencer with a copy of the UBS report dated June 27, 2003 containing the cost valuations for the building. UBS provided a value of $1,391,579.00 for the replacement cost of the entire structure, including the slab. Additionally, considering the issues which had arisen relative to the viability of the slab, a second valuation of $733,000.00 was given which excluded the slab from the calculation. Mr. Adams again provided the accountants’ stock damage calculation of approximately $3,600,000.00.

The record reveals other issues which had arisen in the course of adjusting the claim of Louisiana Bag. The primary issue involved coverage provisions under the insurance policy for the insured’s stock and whether the stock was covered on a blanket basis or on a per location basis. To resolve this issue, the policy was requested, and, due to conflicting information, a legal opinion was requested by |7Audubon. On August 27, 2003, the legal opinion on coverage was issued advising Audubon that the stock was covered on a blanket basis.

Mr. Adams issued a fifth report to Mr. Spencer on August 21, 2003. With this report, Mr. Adams attached a statement of loss along with a recommendation to pay the remaining policy limits. The report stated as follows:

Enclosed is a proposed Statement of Loss to conclude the claim based on a loss of $5,190,872.82. As per the enclosed Statement of Loss, after application of the policy limits for building, stock, office contents and computer equipment, the claim is calculated in the amount of $3,266,309. An advance payment of $1,000,000 has been made to the insured which makes for a recommended net concluding payment as outlined of $2,266,309.00.

Therefore, despite any issues which may have arisen regarding the policy, or any valuation issues relative to the building, stock, office contents, and computer equipment, the facts in this case unequivocally establish that all of these issues were resolved in their entirety by the end of August of 2003. The record in this case contains no reasonable factual basis to conclude otherwise, nor is there any other permissible view of the evidence. This information, which was provided to Audubon, was sufficient to “fully apprise” the insurer of the amount of damages sustained by Louisiana Bag. Satisfactory proof of loss having been presented to Audubon, the statutory time delays for payment to be made under the policy began. Undisputedly, another payment was not made until October 8, 2003. On said date, Audubon issued a $500,000.00 check to Louisiana Bag which was only a partial payment and which was well beyond thirty days. On October 29, 2008, two subsequent payments were issued in the amounts of $1,678,590.00 and $87,719.00. A final payment of $12,500.00 was issued to Louisiana Bag on February 19, 2004 to cover the cost of the debris removal.

Having determined that Audubon received satisfactory proof of loss by the end |sof August of 2003, and given Audubon’s failure to meet the statutory delays for payment, the question which we are called upon to decide is whether the failure to make payment was arbitrary and capricious. For the reasons that follow, we find that the uncontradicted facts in the record clearly indicate that Audubon was arbitrary and capricious.

Arbitrary and Capricious

Audubon asserts that it was not arbitrary and capricious in the handling of the claim. Rather, it contends that there were several valid reasons requiring further investigation. Audubon argues in brief that the “complexity of the loss” must be considered which required “expert adjusters and consultants ... to detail the loss, determine what is salvageable, and essentially tell the story of the accident.” The facts in the record clearly establish that ample investigation was conducted by Audubon through its own hired experts during a four month period, all of which indicated that the fire caused a total loss to the property of the insured.

One “major plot twist” discussed by Audubon was the question which arose during the adjusting of the claim about the viability of the slab foundation of the building. While we acknowledge that the question of the condition of the slab necessitated further investigation, we find that once Audubon was provided with the valuations, it still failed to timely make payment under the policy. As early as June 16, 2003, Mr. Adams was informed by UBS that the replacement cost of the building was approximately $1,500,000.00 which was obviously in excess of the $1,285,240.00 policy limits. The final opinion from UBS of June 27, 2003 provided documentation of a replacement cost of $1,391,579.00. Again, the figures were clearly in excess of the policy limits. Despite these figures, and contrary to the experts’ opinion and the recommendation of Mr. Adams in his report of August 21, | a2003, and the legal opinion as to the coverage on the stock issued August 27, 2003, Audubon still did not issue a payment until October of 2003.

Based upon a thorough review of the record, we find that the failure of Audubon to pay its policy limits for the damage sustained by Louisiana Bag to the building, contents, and computer equipment was arbitrary and capricious. The damage to the building as a result of the fire, including its contents and computer equipment, was readily apparent. Mr. Adams was of the opinion that it appeared to be a total loss from the date of his sight investigation just days following the fire. This opinion was conveyed to Mr. Spencer early in the investigation of the claim and consistently throughout. Additionally, although Mr. Adams recommended that an expert be retained to perform an evaluation of the building in April of 2003, it was not done until June of 2003. Ultimately, the extent of the loss was confirmed by the documentation which was assembled at the request of Audubon and which was provided to Audubon by the end of August of 2003. These figures confirmed the “apparent” loss to Louisiana Bag and confirmed that the loss exceeded the policy limits. Despite this, timely payment in accordance with La.R.S. 22:658 was not made by Audubon under the policy.

The second major “twist” described by Audubon was the issue of the extent of the stock coverage provided by the policy. The record reflects that the proposal issued by Audubon relative to the stock coverage was inconsistent with the policy that was ultimately issued. However, we note that this error was solely the fault of Audubon who, ironically, could not determine the type and extent of stock coverage provided for in its own policy. Moreover, the error was detected in June of 2003 and was brought to the attention of Audubon for the very purpose of preventing any delay in payment being made under the policy. Thus, after being provided with the |inaccountants’ report of June 18, 2003 with values for the loss of the stock well in excess of the policy limits for the stock, and even after the August 27, 2003 issuance of the legal opinion which it had requested, Audubon failed to make timely payment for the loss of the stock.

We also find that Audubon was arbitrary and capricious in its failure to pay its policy limits for the stock of Louisiana Bag damaged by the fire. Stock valuations provided by the independent accountants equaled approximately $3,600,000.00. This damage assessment also exceeded the policy limits, yet Audubon failed to timely make payment to Louisiana Bag even after all of the remaining policy issues had been resolved by the end of August of 2003. In fact, the record reveals that Audubon failed to pay the full policy limits for coverage to the building, stock, contents, and computer equipment until the end of October of 2003. Admittedly, by this date, Audubon had made some partial payments under the policy. However, its statutory obligation as to the building and the stock was only partly satisfied.

Mr. Adams’s report of August 21, 2003 provided the total figure of the loss and the recommendation for payment. All documentation had been supplied to Audubon in support of same. Yet, inexplicably, payment of the remaining policy limits was still not forthcoming. This is true despite the continuing advice of Mr. Adams that the claim exceeded policy limits and despite any evidence whatsoever to the contrary. Even after Audubon’s receipt of the legal opinion dated August 27, 2003 relative to the stock coverage, the payment of $500,000.00 was not made until October 7, 2003.

Duty to Tender Undisputed Portion

Audubon asserts in brief that it was not “fully apprised” of the loss sustained by Louisiana Bag in order to trigger the statutory time delays until January of 2004. Lflt was at this time that the outstanding claims for debris removal and personal effects were concluded. As noted above, Audubon did make payment on February 19, 2004, of $12,500.00. Audubon concludes, therefore, “the entire amount of the claim was timely paid within [thirty] days” and that “the trial court was correct in finding that Audubon’s efforts were reasonable, in good faith, and far removed from the vexatious behavior described in La.R.S. 22:658.” We disagree.

It is clear that the failure of an insurer to pay the undisputed portion of the claim within the statutory delay will subject the insurer to liability for penalties on the entire claim. Sibley v. Insured Lloyds, 442 So.2d 627 (La.App. 1 Cir.1983). For the reasons discussed above, Audubon possessed sufficient proof of loss relative to the damage to the building, stock, contents, and computer equipment of Louisiana Bag by the end of August of 2003. Even if the claims for debris removal and personal effects were not concluded as of August of 2003, Audubon could not for those reasons withhold payment of the un-contradicted and, therefore, undisputed portion of the claim. Consequently, Audubon subjected itself to the penalty set forth in La.R.S. 22:658 in effect after August 15, 2003.

For the foregoing reasons, we find from the record that a reasonable factual basis did not exist for the trial court’s finding that the conduct of Audubon was not arbitrary and capricious in violation of La.R.S. 22:658, and we conclude that the trial court committed manifest error and that its finding was clearly wrong. Stobart v. State, through Dep’t of Transp. and Dev., 617 So.2d 880 (La.1993). We, therefore, reverse the judgment of the trial court dismissing the claim of Louisiana Bag against Audubon for penalties pursuant to La.R.S. 22:658.

Award of Penalties and Attorney Fees

For the reasons set forth above, we find that Audubon had satisfactory proof |12of loss as to the building, stock, office contents, and computer equipment by the end of August of 2003. As required by La.R.S. 22:658 in effect as of August 15, 2003, Audubon failed to make payment under its policy within thirty days after receipt of said satisfactory proof of loss as to the building, stock, office contents, and computer equipment. Therefore, in accordance with law, Audubon is assessed a penalty in the amount of twenty-five percent of the remaining and unpaid policy limits relative to the building, stock, office contents, and computer equipment only. As of October 1, 2003, Audubon had paid $1,000,000.00 on the claims of Louisiana Bag. As per Mr. Adams’s report to Mr. Spencer of Audubon, the claim was calculated at $3,266,309.00. After factoring in the $1,000,000.00 paid by Audubon toward this claim of $3,266,309.00, the uncontra-dicted net amount owed by Audubon under the policy is $2,266,309.00. Twenty-five percent of $2,266,309.00 amounts to $566,599.75. We, therefore, award Louisiana Bag a penalty to be paid by Audubon in the amount of $566,599.75.

Louisiana Bag has also requested attorney fees in connection herewith; however, that claim is disallowed. Though attorney fees were available under La.R.S. 22:658 prior to August 15, 2003, this court’s determination that Audubon had received satisfactory proof of loss and that it was deemed arbitrary and capricious by the end of August of 2003, triggers La.R.S. 22:658 subsequent to the August 15, 2003 effective date of the amendment. Louisiana Revised Statutes 22:658 subsequent to August 15, 2003 did not allow attorney fees. Consequently, the claim of Louisiana Bag for attorney fees is denied.

DECREE

For the foregoing reasons, the judgment in favor of Audubon Indemnity Company is reversed. Additionally, judgment is rendered herein in favor of | ^Louisiana Bag Company, Inc. and LaPac Manufacturing, Inc. and against Audubon Indemnity Company in the amount of $566,599.75. The claim of Louisiana Bag Company, Inc. and LaPac Manufacturing, Inc. for attorney fees is denied.

Costs of this appeal are assessed against Audubon Indemnity Company.

REVERSED AND RENDERED.

      . By the date of trial, Audubon had paid the remaining policy limits. Therefore, the only remaining issue before the trial court was whether penalties and attorney fees were warranted,

      . Louisiana Revised Statutes 22:658 was amended by 2003 La. Acts No. 790, § 1, effective August 15, 2003.


author: SULLIVAN, Judge.

text:
    Clint DESOTO, et al. v. FORD MOTOR COMPANY, et al.
    No. 07-1097.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 2008.

      Robert G. Nida, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Plaintiffs/Appellees Clint Desoto, Jayleen Deso-to.
    Robert W. Maxwell, James C. Rather, Jr., McCranie, Sistrunk, Anzelmo, Hardy, Maxwell & McDaniel, Covington, LA, for Defendants/Appellants Ford Motor Company, Hixson Autoplex of Alexandria, Inc.
   Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.

SULLIVAN, Judge.

bln this products liability case, the plaintiffs assert that their 2000 Ford F150 truck caught fire as the result of a manufacturing defect. The manufacturer and the seller appeal the trial court’s judgment in plaintiffs’ favor. For the following reasons, we reverse.

Facts

On May 21, 2005, Clint and Jayleen De-soto’s 2000 Ford F150 pickup truck caught on fire during the early morning hours while they were sleeping. The evening before the fire, Mrs. Desoto had parked the truck, which had a manual transmission, in gear near the front of their mobile home. The Desotos were awakened early the next morning when they heard a loud noise and felt their mobile home begin to shake. They ran outside and saw the truck against the mobile home.

Mr. Desoto testified that the truck was making a cranking noise and that the rear wheels were spinning. About the same time, he saw flames burst through the hood of the truck. The burning truck caught the mobüe home on fire where it had contact with the mobile home. Mr. Desoto was able to extinguish the mobile home fire but was unable to extinguish the truck fire.

Mrs. Desoto called 911. The volunteer fire department arrived while the truck was burning; the firemen pulled it away from the trailer and extinguished the fire. The firemen were unable to determine the source of the fire.

The Desotos filed a claim with their insurance company and were paid approximately $5,000 for their loss. After paying the Desotos, the insurance company took possession of the truck then had it destroyed.

12After the fire, the Desotos learned that Ford had issued a safety recaU on certain vehicles, including their truck, because the speed control deactivation switch could melt, smolder, or catch on fire. Mr. Deso-to initially believed that someone had been trying to steal the truck when the fire occurred. However, after learning of the recaU, he thought otherwise, and he and Mrs. Desoto filed suit against Ford and the dealership from which they purchased the truck, claiming the fire was caused by a redhibitory defect. The truck had 45,000 mües on the odometer when purchased and 165,000 mües on the odometer when the fire occurred. Mr. Desoto testified that he performed routine maintenance on the truck but no major repairs. He had no knowledge of any repairs made by the previous owner(s).

The matter was tried on the merits. At trial, the Desotos presented their testimony, the testimony of a volunteer fireman, documentation concerning the recall by Ford, photographs of the truck and mobüe home while the fire was burning and after the fire was extinguished, and correspondence from Ford in support of their claims. Ford presented the testimony of Larry Helton, an expert in fire and explosion investigation. At the conclusion of the trial, the trial court applied the eviden-tiary doctrine of res ipsa loquitor and awarded judgment in favor of the Desotos, finding the truck’s speed control deactivation switch caused the fire. The trial court awarded the following damages:

Loss of Truck $4,500
Damage to Mobile Home 1,800
General Damages Jayleen Desoto 500
General Damages Clint Desoto 250
Attorney Fees 3,000

Ford appealed, assigning error with the trial court’s determination that the speed control deactivation switch caused the fire. The Desotos answered the appeal, | ^seeking increases in their general damage awards, general damages for the children who were present during the fire, and an increase in attorney fees for work performed on appeal.

Standard of Review

Ford argues that the Desotos did not prove the existence of a defect which caused their truck to catch fire. Sufficiency of the evidence is a legal issue. Darbonne v. Wal-Mart Stores, Inc., 00-551 (La.App. 3 Cir. 11/2/00), 774 So.2d 1022, (citing Evans v. Lungrin, 97-541 (La.2/6/98), 708 So.2d 731). Under Louisiana jurisprudence, the manifest error standard of review is not applicable if a trial court commits legal error which interdicts the fact-finding process. Id. In such situations, the appellate court should make its own .independent de novo review of the record and determine by a preponderance of the evidence if the record is complete. Insufficiency of the evidence arguments apply when, as here, the appellant argues that the party with the burden of proof lacks the necessary evidence to tip the scales over to the level of the applicable standard. In reviewing the trial court’s judgment, we must still resolve any factual conflicts by application of the manifest error rule and cannot disturb express or implied factual findings of the trier of fact. Id.

Discussion

The supreme court observed in Lawson v. Mitsubishi Motor Sales of America, Inc., 05-257, pp. 7-8 (La.9/6/06), 938 So.2d 35, 40, that “[a] products liability claim is, by its own nature, extremely ‘fact-intensive,’ and as such, the heart of [a plaintiffs] claim lies with the sufficiency of the evidence submitted at trial.”

Pursuant to La.R.S. 9:2800.54(A), a plaintiff who asserts a products liability claim must prove that the damage for which he seeks to recover was “proximately |4caused by a characteristic of the product that renders the product unreasonably dangerous.” The supreme court held in Lawson that the doctrine of res ipsa loquitur is applicable to product liability actions; however, the doctrine must be applied sparingly. Id. This court’s explanation of the doctrine was accepted by the supreme court in Lawson:

A plaintiffs burden of proof in a civil suit is generally preponderance of the evidence. He can satisfy his burden of proof with direct or circumstantial evidence. Sonnier v. Bayou State Mobile Homes, Inc., 96-1458 (La.App. 3 Cir. 4/2/97), 692 So.2d 698, writ denied, 97-1575 (La.10/3/97), 701 So.2d 201. Circumstantial evidence is “evidence of one fact, or of a set of facts, from which the existence of the fact to be determined may reasonably be inferred.” W. Page Keeton, et al., Prosser & Keeton on the Law of Torts § 39, at 242 (5th ed.1984). When direct evidence of a defendant’s negligence is not available, the doctrine of res ipsa loquitur assists the plaintiff in presenting a prima facie case of negligence. Cangelosi v. Our Lady of the Lake Reg’l Med. Ctr., 564 So.2d 654 (La.1989). Res ipsa loquitur As. applicable when the circumstances surrounding an accident are so unusual as to give rise to an inference of negligence or liability on the part of the defendant and that, under such circumstances, the only reasonable and fair conclusion is that the accident resulted from a breach of duty or omission on the part of the defendant. Id.
If applicable, the doctrine allows the trier of fact to infer negligence from the circumstances of the event. Id. Generally, three criteria must be present for the doctrine to be applicable: 1) the facts must indicate that the plaintiffs injuries would not have occurred in the absence of negligence; 2) the plaintiff must establish that the defendant’s negligence falls within his scope of duty to plaintiff; and 3) the evidence should sufficiently exclude inference of the plaintiffs own responsibility or the responsibility of others besides defendant in causing the accident. Id. Because the standard of proof is preponderance of the evidence, not proof beyond a reasonable doubt, the plaintiffs evidence need only exclude all other reasonable explanations for his injuries; it need not “conclusively exclude all other possible explanations for his injuries.” Id. at 664.

Id. at 49-50 (quoting Lawson v. Mitsubishi Motor Sales of Am., 04-839, 04-976 (La.App. 3 Cir. 12/29/04), 896 So.2d 149, 153-54) (emphasis in original).

|fiThe recall notice issued by Ford stated that “a defect ... exists in certain 2000 model year F-150, Expedition, Navigator, and 2001 F-150 SuperCrew vehicles equipped with speed control.” According to the notice, the safety recall was issued because “an underhood speed control deactivation switch may overheat, smoke, or burn, which could result in an underhood fire” and that the “condition may occur either when the vehicle is parked or when it is being operated, even if the speed control is not in use.”

Ford presented the testimony of Larry Helton, who was accepted as an expert in fire and explosion investigation. Mr. Hel-ton testified that he does a lot of work for Ford but is not on retainer with the company and that he has worked on other speed control deactivation switch cases and has previously found that a Ford speed control deactivation switch caused a fire. Mr. Helton first opined that the fire was not a “hot service fire” because of the length of time the truck had been parked before it caught on fire. He then opined that nothing in the back portion of the engine compartment, which is where the speed control deactivation switch is located, caused the fire because it was evident from one of the Desotos’ photographs that the device remained intact after the fire and that the plastic covering for the device would have melted if the fire had started in that area. Mr. Helton also pointed to the undisturbed plastic cap of another device in the rear of the engine compartment which remained intact after the fire as further evidence that the fire was not caused by the speed control deactivation switch.

IfiMr. Helton testified that he has intentionally burned Ford vehicles to attempt to replicate speed control deactivation switch fires and that the burn pattern depicted in the Desotos’ photographs is totally inconsistent with burn patterns he has seen in known speed control deactivation switch fires. He further testified that he had never seen the wheels spinning or engine starting on any vehicle which he intentionally burned and that wheels spinning or the engine starting have never been reported in any case where fire was determined to be caused by the speed control deactivation switch.

In order for res ipsa loquitor to be applicable herein, the Desotos had to establish by a preponderance of the evidence that the fire was not caused by them or a third party. Lawson, 938 So.2d 35. The trial court determined that there was no evidence of vandalism as initially suspected by Mr. Desoto, implying it was Ford’s burden to prove that the fire was caused by vandalism. This was error, as it was the Desotos’ burden to exclude all other reasonable explanations for the fire. Id.

The trial court further erred by assuming facts not in evidence to exclude vandalism as the cause of the fire. Benjamin ex rel. Benjamin v. Hous. Auth. of New Orleans, 04-1058 (La.12/1/04), 893 So.2d 1. Although no evidence was presented on the issue of vandalism, the trial court reasoned:

Vandalism ' isn’t [the cause] because again the way the fire certainly smoldered under the hood or around that left (INAUDIBLE) compartment for a while ... vandalism just does not seem to be at all since it was making that noise with the starter when the plaintiffs walked out with no keys in it. I’m assuming that I would have been told and I think I can assume [there was no] evidence of some hot wiring activity as that occurred inside. But you know, if you think about it, it just wouldn’t make a sense for a grown up to start the fire under the hood, close the hood quietly and then get in it and tamper with it and drive it to the home. It’s just not logical. I mean even with vandals today, meth addicts and what not it just, it just doesn’t make sense and it’s just nothing.

|7The Desotos did not carry their burden of proof because they did not exclude all reasonable explanations, other than the speed control deactivation switch, for the fire. Therefore, the judgment of the trial court must be reversed.

Disposition

The judgment of the trial court is reversed. All costs of this appeal are assessed to the Desotos.

REVERSED.

      . In his testimony, Mr. Helton referred to the device at issue as the speed sensor device. For consistency in this opinion, we use the term "speed control deactivation switch,” as the switch is referenced in the recall notice issued by Ford.


text:
    John Wayne BETTS v. Richard HOFFMAN, Margaret Hoffman, Cheryl McEndree, and James Hoffman.
    No. 07-1054.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 2008.

      Scott Westerchil, Leesville, Louisiana, for Plaintift/Appellant: John Wayne Betts.
    Leslie R. Leavoy, Jr., DeRidder, Louisiana, for Defendants/Appellees: Richard Hoffman, Margaret Hoffman, Cheryl McEndree, and James Hoffman.
   Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.

GENOVESE, Judge.

| Plaintiff-Appellant, John Wayne Betts (Mr. Betts), filed a Rule to Evict Tenants against Richard Hoffman, Margaret Hoffman, Cheryl McEndree, and James Hoffman (Defendants). Defendants filed Exceptions of Misuse of Summary Process; No Right and No Cause of Action, asserting that questions of ownership existed and contending that this matter must be adjudicated as an ordinary proceeding. The trial court granted Defendants’ Exception of Misuse of Summary Process and dismissed Mr. Betts’s eviction proceeding. Mr. Betts appeals. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On January 4, 2007, Mr. Betts sent, via certified mail, a Notice to Vacate to his step-father, Richard Hoffman, his mother, Margaret Hoffman, and his step-siblings, Cheryl McEndree and James Hoffman. Mr. Betts, as alleged owner, sought to evict Defendants, as occupants, from property on which he and each of the Defendants live and apparently share. On January 12, 2007, Mr. Betts filed a Rule to Evict Tenants against Defendants in the Thirty-sixth Judicial District Court, Parish of Beauregard, State of Louisiana, seeking a judgment of eviction due to Defendants’ failure to vacate the property after receiving legal notice to do so. Attached to his pleading was a purported Act of Donation which Mr. Betts contends proved his ownership of the property at issue herein. The alleged donation was executed by his step-father, Richard Hoffman, and his mother, Margaret Hoffman, on February 22, 2002, in the state of Ohio. However, said donation was not accepted by Mr. Betts and not filed into the conveyance records of Beauregard Parish until December 20, 2006, over four [ 2years later.

On March 14, 2007, Defendants filed Exceptions of Misuse of Summary Process; No Right and No Cause of Action against Mr. Betts. In their exceptions, Defendants asserted: “Eviction is not a legal cause of action for ... [Mr. Betts] in that he and the [Defendants ... have resided on the same piece of property on and off during the last ten (10) years. The actions of possession or ownership are appropriate.” Defendants, specifically Richard Hoffman and Margaret Hoffman, further alleged that it was never their intention to donate the' property at issue herein to Mr. Betts. Defendants also asserted that Mr. Betts “has never accepted the alleged donation which he full well knew was in fact a power of attorney so that [Mr. Betts] could deal with his mother’s and step-father’s property while they were hospitalized [in Ohio]. The donation was never intended to vest full ownership in the property to [Mr. Betts].”

On March 14, 2007, a hearing on the rule for eviction was held wherein the trial court found that questions of ownership did, in fact, exist; therefore, this matter could not legally be determined in a summary proceeding.” The trial court granted Defendants’ Exception of Misuse of Summary Process and dismissed Mr. Betts’s eviction suit. Mr. Betts appeals.

ASSIGNMENT OF ERROR

Mr. Betts contends that the trial court erred in granting Defendants’ Exception of Misuse of Summary Process which resulted in the dismissal of his eviction suit.

| «STANDARD OF REVIEW

The standard of appellate review of factual findings in a civil action is the manifest error/clearly wrong standard, and factual findings should not be reversed absent manifest error or unless they are clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the reviewing court may not reverse. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990). Consequently, when there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous. Id.

Moncrief v. Succession of Armstrong, 05-1584, p. 10 (La.App. 3 Cir. 9/27/06), 939 So.2d 714, 720.

LAW AND DISCUSSION

Mr. Betts claims that he acquired ownership of the property at issue herein pursuant to a donation from Richard and Margaret Hoffman in 2002. Mr. Betts contends that he, as the property’s owner, was legally entitled to evict Defendants, who were occupants, pursuant to the summary process provisions of La.Code Civ.P. art. 4701, et seq.

Mr. Betts asserts that the form of the Act of Donation complied with La.Civ. Code art. 1536 which provides: “An act shall be passed before a notary public and two witnesses of every donation inter vivos of immovable property or incorporeal things, such as rents, credits, rights or actions, under the penalty of nullity.” Mr. Betts also contends that the donation was legally binding upon his acceptance and subsequent filing of the Act of Donation into the conveyance records of Beauregard Parish (four years later) on December 20, 2006. See La.Civ.Code art. 1540 and La. Civ.Code art. 1554. In his brief, Mr. Betts cites Rutherford v. Rutherford, 346 So.2d 669 (La.1977), in support of his argument that the donation is legally binding according to the terms of La.Civ.Code art. 1540, claiming that “notice of acceptance is effective upon the donors upon recordation of the instrument in the records of the Office of the Clerk of Court in which the property is situated.” Finally, Mr. Betts argues that Defendants’ Exception of Misuse of Summary Process made no specific allegation of fraud; therefore, the trial court improperly considered parole evidence which led to its erroneous decision. According to Mr. Betts, the trial court “should have excluded any mention or consideration of parole evidence in making a decision on [Defendants’] Exception of Misuse of Summary Proceedings”; and, since it did not, the trial court’s grant of Defendants’ dilatory exception and its dismissal of Mr. Betts’s eviction suit against Defendants should, therefore, be reversed.

Defendants assert that the trial court’s judgment was proper considering their assertion that issues relative to ownership were existent. In brief, Defendants, specifically Richard and Margaret Hoffman, contend that it was never their intention | ¡¡to donate the property at issue herein to Mr. Betts. Instead, they allege that it was their intention to grant to Mr. Betts a power of attorney so that Mr. Betts could “take care of their property in Beauregard Parish” while they “were ill, and [were] hospitalized, and were being taken care of by relatives in Ohio.” These assertions were set forth in their exception, and Defendants argue that the trial court’s reliance upon their implications of fraud in order to grant judgment in their favor was not error. We agree.

Louisiana Civil Code Article 1848 (emphasis added) provides

Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature. Nevertheless, in the interest of justice, that evidence may be admitted to prove such circumstances as a vice of consent, or a simulation, or to prove that the written act was modified by a subsequent and valid oral agreement.

We find that Defendants’ allegations meet the threshold for the trial court’s consideration of parol evidence.

The vices of consent are error, fraud, and duress. La.Civ.Code art.1948. Our jurisprudence has also recognized that parol evidence is admissible between the contracting parties: (1) to prove fraud, mistake, want or failure of consideration, and illegality; (2) to explain an ambiguity when such explanation is consistent with the written terms; or (3) to show that the writing is only a part of an entire oral contract between the parties. Scafidi v. Johnson, 420 So.2d 1113 (La.1982).

Myles v. Consol. Cos., Inc., 05-192, p. 5 (La.App. 3 Cir. 6/1/05), 906 So.2d 677, 681, writ denied, 05-2245 (La.2/17/06), 924 So.2d 1019.

We find Mr. Betts’s reliance upon Rutherford misplaced. Rutherford dealt with the issue of whether the donee’s acceptance was valid. Contrary to his assertions, the issue in the case at bar is not whether Mr. Betts’s acceptance was valid; rather, the |fiissue is whether the donation, as a whole, is valid. Defendants allege that a necessary element to the donation at issue herein, the donors’ intent, was lacking. Further, Defendants’ implications are such that the purported Act of Donation was procured by Mr. Betts through fraud, an element which vitiates consent. See La.Civ.Code art.1948. Therefore, pursuant to the discretion afforded by La.Civ.Code art. 1848, we do not find error with the trial court’s consideration of Defendants’ implication that it was not their intent to effectuate a donation to Mr. Betts.

Ordinary proceedings require the use of four types of pleadings: petitions, exceptions, written motions, and answers. See La.Code Civ.P. art. 852. “Summary proceedings are those which are conducted with rapidity, within the delays allowed by the court, and without citation and the observance of all the formalities required in ordinary proceedings.” La.Code Civ.P. art. 2591.

An eviction is a summary proceeding. A challenge to a donation requires the formalities of an ordinary civil proceeding. Because there was a challenge to Mr. Betts’s ownership of the property on the basis that Defendants did not intend to donate the property, the trial court concluded that fraud, or ill practices, asperse the purported donation. Therefore, the legal issues of whether or not Mr. Betts owns the property and can legally evict Defendants effectively remove this matter from a summary proceeding and rightfully relegate it to an ordinary proceeding. We find a reasonable factual basis in the record for the trial court’s decision to render judgment dismissing Mr. Betts’s eviction suit. Consequently, we find no manifest error by the trial court. The trial court’s grant of Defendants’ Exception of Misuse of Summary Process and its dismissal of Mr. Betts’s eviction suit are therefore affirmed in all respects.

ItDECREE

For the foregoing reasons, we affirm the trial court’s grant of Defendants’ Exception of Misuse of Summary Process and its dismissal of Mr. Betts’s Rule to Evict Tenants. Plaintiff-Appellant, John Wayne Betts, is assessed with all costs of this appeal.

AFFIRMED.

      . The record indicates that Defendants received said certified notices on January 5, 2007.

      . Though Defendants’ exception is labeled "Exception of Misuse of Summary Process,” said exception is actually a "Dilatory Exception of Unauthorized Use of Summary Proceeding” as set forth in La.Civ.Code art. 926(A)(3) and will be addressed accordingly. The trial court did not rule on Defendants' Peremptory Exceptions of No Right of Action and No Cause of Action.

      . According to La.Code Civ.P. art. 4704, the definition of " '[o]ccupant’ includes a sharecropper; half hand; day laborer; former owner; and any person occupying immovable property by permission or accommodation of the owner, former owner, or another occupant, except a mineral lessee, owner of a mineral servitude, or a lessee of the owner[J”

      . Louisiana Civil Code Article 1540 provides:
      A donation inter vivos shall be binding on the donor, and shall produce effect only from the day of its being accepted in precise terms.
      The acceptance may be made during the lifetime of the donor by a posterior and authentic act, but in that case the donation shall have effect, with regard to the donor, only from the day of his being notified of the act establishing that acceptance.

      .Louisiana Civil Code Article 1554 provides:
      When the donation affects an immovable or rights thereto, the act of donation, as well as the act of acceptance, whether the acceptance be made by the same or a separate act, must be filed for registry in the conveyance records of the parish in which the immovable is located.

      . Louisiana Civil Code Article 1948 provides, "Consent may be vitiated by error, fraud, or duress.”