author: JAMES F. McKAY III, Judge.

text:
    Gerard MENDONCA v. TIDEWATER INC.
    No. 2005-CA-1166.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 31, 2006.
    Rehearing Denied June 30, 2006.
    Gerard Mendonca, New South Wales, Australia, In Proper Person, Plaintiff/Appellant.
    Walter W. Christy, Renee C. Gluth, Fri-lot, Partidge, Kohnke & Clements, L.C., New Orleans, Louisiana, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO, JR.).
   JAMES F. McKAY III, Judge.

liThe plaintiff, Gerard Mendonca, a citizen of India currently residing in Australia, brought a suit against the defendant, Tidewater Inc., alleging that he was an employee of Tidewater and that Tidewater wrongfully discharged him due to race discrimination, retaliation for whistle-blowing, breach of contract, and/or negligence or intentional tort, all in violation of Louisiana law. Due to Tidewater’s peremptory exception of no right of action previously filed in this case, Mr. Mendonca’s sole remaining claim against Tidewater was for the intentional tort of interference with contract. After the parties had proceeded with discovery, Tidewater filed a motion for summary judgment asserting that Mr. Mendonca lacked any evidence to establish the existence of a limited contract or a legally protected interest between him and his employer (a necessary element to maintain a claim for intentional interference with contract under the seminal case of 9 to 5 Fashions, Inc. v. Spurney, 538 So.2d 228 (La.1989)). The trial court granted Tidewater’s motion for summary judgment and Mr. Mendonca now appeals.

li/The issue before this Court is whether Tidewater’s motion for summary judgment was properly granted.

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is enti-tied to judgment as a matter of law.” La. C.C.P. art. 966(B). This article was amended in 1996 to provide that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action.... ” La. C.C.P. art. 966(A)(2). In 1997, the article was further amended to specifically alter the burden of proof in summary judgment proceedings as follows: The burden of proof remains with the movant. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2); Shelton v. Standard /700 Associates, 2001-0587 (La.10/16/01), 798 So.2d 60.

In the instant case, Mr. Mendonca was an at-will employee of Al Wasl Marine and there was no contract with a term between Mr. Mendonca and Al Wasl Marine. While it was undisputed that Mr. Mendon-ca had an employment contract with A1 Wasl Marine, that contract did not contain a fixed term of employment. Instead, the contract stated that his employment would be “unlimited” and therefore Mr. Mendon-ca was an employee at-will, with no legally protected interest in his employment. Mr. Mendonca argues that the motion for summary | .-¡judgment should have been denied due to the “law of the case” doctrine, or alternatively, because Richard Currence verbally modified his “at-will” employment with Al Wasl Marine by promising him six years of work with Al Wasl Marine.

In discovery and in opposition to the summary judgment motion, Mr. Mendonca never submitted any written evidence of a contract specifying a term for his employment with Al Wasl Marine; instead, Mr. Mendonca repeatedly argued that Richard Currence verbally promised him a guarantee of six years of employment with A1 Wasl Marine. In response, Tidewater asserted that an oral promise is insufficient to modify a written employment contract. Tidewater asserted that under Louisiana Civil Code Article 3538, the laws of Dubai, U.A.E. apply to analyze whether a written contract can be modified by an oral promise. Tidewater attached the original affidavit of an attorney practicing in Dubai, Ibrahim Elsadig, along with the Dubai, U.A.E. statute to prove that under the laws of Dubai, U.A.E., a written contract can only be modified by another written agreement or contract, not by a verbal promise. Mr. Mendonca offered nothing to dispute Tidewater’s assertion.

Based on the record before this Court, there is no evidence that a limited duration contract or a legally protected interest existed between Mr. Mendonca and Al Wasl Marine. As such, Mr. Mendonca cannot satisfy the required elements to maintain a claim for intentional tortious interference with contract under 9 to 5 Fashions, Inc. v. Spurney 538 So.2d 228 (La.1989). Because Mr. Mendonca |4cannot satisfy this evidentiary burden, there is no genuine issue of material fact. Accordingly, summary judgment was proper.

For the foregoing reasons, the trial court’s granting of the defendant’s motion for summary judgment is affirmed.

AFFIRMED.

      . For a more detailed description of the factual and procedural history of this case, see Mendonca v. Tidewater Inc., 2003-1015 (La.App. 4 Cir. 12/17/03), 862 So.2d 505.


source: Caselaw Access Project

author: COOKS, Judge. AMY, J.,

license: Public Domain

text:
    Delores ARMSTRONG v. THRIFTY CAR RENTAL, et al.
    No. 2005-1461.
    Court of Appeal of Louisiana, Third Circuit.
    June 7, 2006.

      Randall B. Tannehill, D. Beau Sylvester, Tannehill & Sylvester, L.L.P., Pineville, LA, for PlaintifftAppellant, Delores Armstrong.
    Russell A. Potter, Andrew P. Texada, Stanford, Stewart & Potter, Alexandria, LA, for Defendant/Appellee, Metropolitan Property & Casualty Insurance Co.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, MARC T. AMY, ELIZABETH A. PICKETT and J. DAVID PAINTER, Judges.
   COOKS, Judge.

It This is an automobile accident case in which the plaintiff appeals the trial court’s grant of summary judgment based on a coverage defense. Finding the matter was not ripe for summary judgment, we reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On November 19, 2001, a vehicle driven by Beverly Lind collided with a vehicle owned and operated by Delores Armstrong. The vehicle Ms. Lind was driving was rented from Siddiqui Group Investors, Inc., d/b/a Thrifty Rent-A-Car (hereafter Thrifty) at the New Orleans Airport, through a lease agreement with Daniel Senander. Ms. Lind and Mr. Senander were in Louisiana on business. While Ms. Lind retrieved the pair’s baggage after arriving at the airport, Mr. Senander secured the rental car. Ms. Lind was not listed as an authorized driver on the rental agreement. At the time of the accident, Ms. Lind maintained an automobile liability insurance policy with Metropolitan Casualty Insurance Company.

Ms. Armstrong suffered injuries as a result of the accident. She filed suit against Mr. Senander, his insurance company, Thrifty, Ms. Lind, and her insurance company, Metropolitan. It was agreed by all parties that Ms. Lind was at fault in causing the accident. Ms. Armstrong settled her claims against Mr. Senander and his insurer. Thrifty was eventually dismissed from the action, and Ms. Lind was released from personal liability. That left Metropolitan as the only remaining defendant in the lawsuit.

Metropolitan filed a Motion for Summary Judgment alleging that under the rental agreement between Mr. Senander and Thrifty, Ms. Lind was not authorized to drive the rental vehicle. Metropolitan also argued the terms and conditions of Ms. Lind’s policy did not cover the use of the rental car since she did not have permission |gof the owner to be driving the vehicle. After hearing argument on the Motion for Summary Judgment, the trial court took the matter under advisement. On August 31, 2005, written reasons for judgment were rendered granting summary judgment in favor of Metropolitan. The trial court stated, in pertinent part, as follows:

There is no dispute that Beverly Lind was not named in the rental insurance agreement as an authorized renter or additional driver of the 2002 Dodge Intrepid. In addition, Beverly Lind did not sign the rental agreement. Delores Armstrong contends that the Court needs to only find that Ms. Lind had either express or implied permission to drive the vehicle on the day of the accident or reasonably believe that she had permission of the owner to drive the vehicle on the date of the accident. Ms. Lind’s affidavit attached to plaintiffs opposition to Exhibit “A” indicates that her companion, Dan Senander, transacted the rental agreement and that she thought she was placed on the rental contract as a listed driver. She further states that she reasonably believed that she had permission of Thrifty to drive its ear. The Court finds the Affidavit insufficient to create an issue of fact and finds that she did not have permission of the owner of the vehicle and could not have reasonably believed that she had permission. The Motion for Summary Judgment is granted.

Ms. Armstrong appealed, contending the trial court committed manifest error in granting summary judgment when there existed material issues of fact as to whether Ms. Lind reasonably believed she had permission of the owner to operate the rental vehicle.

ANALYSIS

At the outset, we note that appellate courts review summary judgments de novo under the same criteria that governed the trial court’s consideration of whether or not summary judgment was appropriate. Schroeder v. Board of Sup’rs of La. State Univ., 591 So.2d 342 (La.1991); Soileau v. D & J Tire, Inc., 97-318 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, writ denied, 97-2737 (La.1/16/98), 706 So.2d 979. Summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter |aof law. La.Code Civ.P. art. 966(B).

La.Code Civ.P. art. 966 charges the moving party with the burden of proving that summary judgment is appropriate. In doing so, the moving party’s supporting documentation must be sufficient to establish that no genuine issue of material fact remains at stake. Townley v. City of Iowa, 97-493 (La.App. 3 Cir. 10/29/97), 702 So.2d 323. Once the mover makes a prima facie showing that there is no genuine issue as to a material fact and that summary judgment should be granted, the burden shifts to the nonmover. Id.

La.Code Civ.P. art. 966 places upon the nonmover the burden to rebut the showing made by the mover of the non-existence of a genuine issue of material fact. Id. The nonmover must sufficiently establish the existence of an essential element of his claim which he is to bear the burden of proving at trial. Id. The threshold question in reviewing a trial court’s grant of summary judgment is whether a genuine issue of material fact remains. Kumpe v. State, 97-386 (La.App. 3 Cir. 10/8/97), 701 So.2d 498, writ denied, 98-50 (La.3/13/98), 712 So.2d 882. After which, the appellate court must determine whether reasonable minds could conclude, based on the facts presented, that the mover is entitled to judgment. Id. Thus, summary judgment is appropriate when all relevant facts are brought before the court, the relevant facts are undisputed, and the sole remaining issue relates to the legal conclusion to be drawn from the facts. Id.

Facts are material if they determine the outcome of the legal dispute. Soileau, 702 So.2d 818. The determination of the materiality of a particular fact must be made in light of the relevant substantive law. Id.

The record established Metropolitan had in force and effect an automobile liability insurance policy insuring Ms. Lind and her personal vehicles. That policy 1¿extended liability coverage to Ms. Lind for any claims arising out of the ownership, maintenance, or use of a covered automobile or a' non-owned automobile. However, with respect to a non-owned automobile, liability coverage for the insured or any relative of the insured is limited to the operation of a non-owned automobile with the permission of the owner:

The operation or use of such vehicle must have been with the permission of, or reasonably believed to have been with the permission of, the owner. The operation or use must also have been within the scope of the permission given. (Emphasis added.)

Ms. Armstrong argues she need only show that Ms. Lind reasonably believed she had permission of the owner to drive the vehicle on the date of the accident to defeat summary judgment. In opposition to the motion for summary judgment, Ms. Armstrong produced an affidavit from Ms. Lind, secured from Mr. Senander’s attorney, that set forth Ms. Lind’s belief that at the time of the accident she believed she was included on the rental policy and therefore had permission of the owner to drive the vehicle. She also maintained in her affidavit that had she been aware she was not listed as a permissive driver in the rental agreement, she would not have driven the vehicle.

In support of its motion for summary judgment, Metropolitan cited Simms v. Butler, 97-416 (La.12/2/97), 702 So.2d 686. In Simms, Newton Moore rented a vehicle from Alamo Rent-A-Car. The rental agreement listed only Moore as an authorized driver. Despite this, Moore gave Jason Butler permission to drive the car. Butler subsequently was involved in an accident. Butler’s parents had a personal automobile policy of insurance with Allstate. Butler was a legal resident of his parents’ home, thus making him eligible to be an insured under the policy. The Allstate policy provided that an insured would be covered while operating a non-owned vehicle only if such vehicle was used with the owner’s permission.

IsThe Supreme Court explained in Simms that to establish coverage under Allstate’s policy, the plaintiffs had to prove the rental vehicle was being used with either the expressed or implied permission of Alamo. Simms, 702 So.2d 686. The Court noted that at the time Moore entered into the rental agreement with Alamo, he had the option to extend authorization to Butler but did not. Thus, as Butler was not authorized to use the vehicle, Allstate was not liable for damages. Id.

Metropolitan also referenced Gonzales v. Progressive Specialty Ins. Co., 99-0792 (La.App. 4 Cir. 5/5/99), 732 So.2d 1268, wherein the plaintiffs filed suit for personal injuries against Progressive arising out of an automobile accident when their vehicle was struck by a vehicle owned by Budget Rent-A-Car Systems. The vehicle had been rented to Mary Zaborowski, but was being driven by Landon Zaborowski at the time of the accident. The rental agreement between Budget and Mary Za-borowski listed Mary as the only authorized driver of the Budget vehicle. Progressive had issued a policy insuring the Zaborowskis; however, the policy defined an “Insured Person” only to insureds operating non-owned vehicles with the permission of the owner. The plaintiff in Gonzales argued the Simms case was distinguishable because the permissive language appeared under the “Insured Autos” section of the Allstate policy in Simms, as opposed to the “Insured Persons” section of the Progressive policy in Gonzales. The court rejected this argument, stating:

The central issue decided by the court in Simms was whether the rental vehicle was being used with either the express or implied permission of Alamo. The permissive language in Simms appeared under the “Insured Autos” section of Allstate’s policy. The court reasoned that Allstate’s policy excluded coverage because Alamo, the owner of the rental car, did not give permission, either express or implied, to Butler to drive the vehicle. Thus, under Allstate’s policy, the rental vehicle was not an “insured auto.” Although the permissive language in this case appears under the “Insured Persons” section of the Progressive policy, the fact remains that because Mary | fiZaborowski never listed Landon as an authorized driver under the Budget rental agreement, even if she allowed him to use the vehicle, he did not have Budget’s [the owner’s] “expressed permission” to drive the rental vehicle. Therefore, under the reasoning of Simms, there was no coverage under the Progressive policy.

Gonzales, 732 So.2d at 1269.

Ms. Armstrong argues the facts in Simms and Gonzales are distinguishable from the present case. She argues there is no language in either policy in Simms or Gonzales that allowed coverage if the insured reasonably believed he or she had permission of the owner to operate the vehicle as the Metropolitan policy provides in this case. Such a distinction, Ms. Armstrong argues, presents a different standard of proof based on the policy language than that in Simms and Gonzales.

We agree with Ms. Armstrong that there are facts in this case which distinguish it from Simms and Gonzales. We find the facts in Sauer v. National Car Rental System, Inc., 03-1456 (La.App. 5 Cir. 4/27/04), 873 So.2d 808, more in accord with those presented in the present case. In Sauer, Rose Hutchins rented a vehicle from National. An accident occurred when Hutchins’ sister, Iva Heflin, struck a vehicle driven by Jerome Sauer. Allstate carried a policy of insurance on Heflin and was sued by Sauer in that capacity. Allstate filed a motion for summary judgment on the grounds that Heflin was not listed as an authorized driver on the National rental agreement. The Allstate policy provided that an “insured auto” includes an auto that was not owned by the insured only when such vehicle fits the policy definition of “Non-owned Auto.” The policy definition stated:

17“Non-owned Auto means an auto used by you or a resident relative with the oiuner’s permission but which is not: a) owned by you or a resident relative, or b) available or furnished for the regular use of you or a resident relative. [Emphasis added.]

Sauer, 873 So.2d at 810.

In opposition to the motion for summary judgment, Heflin filed an affidavit which stated she was traveling with her sister to New Orleans. While Hutchins made arrangements for a rental car from National, Heflin was obtaining the pair’s luggage. Heflin stated she assumed she would be listed as an additional driver. The National desk clerk accompanied both Hutchins and Heflin to the rental vehicle, at which point Heflin sat in the driver’s seat and received instructions on operation of the vehicle. Heflin and Sauer argued the actions of the National desk clerk in explaining the vehicle’s features, despite not being listed as an additional driver on the rental document, was implied permission for her to drive the vehicle. The trial court did not agree and granted summary judgment.

On appeal, the fifth circuit reversed and found material issues of fact precluded summary judgment in this matter. The court examined the supreme court’s opinion in Simms, and concluded as follows:

Here, as in Simms, the National Car Rental agreement stated that an additional driver is authorized only if an additional driver charge is paid and the person is named on the rental agreement. In the Simms case there was no indication of any implied permission. Here, however, after Heflin got in the driver’s seat, the rental agent explained the use of the rental car to her.
In both Simms and this case there was an Allstate policy, with the same or similar regarding use of non-owned autos; there is a rental vehicle with a rental contract; and there is a driver of the rental vehicle who is not named on the rental contract as an authorized driver.
In Simms, the supreme court equated the authorization required under the rental agreement with the permission required by the policy. Simms had no facts that raised the issue of implied permission.
Here, in contrast, although Hutchins failed to list Heflin as an |sauthorized driver on the rental form, the rental company employee explained use of the auto to Heflin as Heflin was sitting in the driver’s seat. This raises a genuine issue of material fact as to whether implied permission could be construed from the actions of National Car Rental’s employee or employees in instructing Heflin in the operation of the car. That issue of fact is sufficient to defeat summary judgment.

Although there is no issue of implied permission through the actions of the rental company in this case, we note the clear language of the Metropolitan policy in this case, unlike the policies in Simms, Gonzales, and Sauer, only requires that Ms. Lind reasonably believe she had permission of the owner to operate the vehicle. Ms. Lind’s affidavit stated she “thought [she] was placed on the rental contract as a listed driver,” and she “would not have driven the rental car had I thought I was not listed on the rental contract.” The affidavit of Ms. Lind is material evidence that she believed she had permission of the owner to drive the vehicle. The affidavit creates, at a minimum, issues of material fact regarding the reasonableness of Ms. Lind’s belief and her actions in operating the vehicle which should have precluded summary judgment. Further, Mr. Senander’s actions in allowing Ms. Lind to operate the vehicle lend further credence to Ms. Lind’s apparent belief that she was included as a listed driver on the rental agreement.

We find the trial court erred in finding there were no issues of material fact that existed to preclude granting summary judgment. Therefore, we reverse the grant of summary judgment, and remand the case for further proceedings. All costs of this appeal are assessed against appel-lee, Metropolitan Casualty Insurance Company.

REVERSED AND REMANDED.

AMY, J., dissents and assigns written reasons.

AMY, J.,

dissenting.

hi respectfully dissent from the majority opinion as I find that the plaintiff did not establish that Ms. Lind was covered under the insurance policy due to a reasonable belief that she had permission of the vehicle’s owner to drive. In my view, the trial court was correct in finding that Ms. Lind’s affidavit failed to establish a genuine issue of material fact in this regard. Instead, the affidavit merely sets forth Ms. Lind’s allegation that she “reasonably believed that [she] had permission of Thrifty to drive its car.” It fails to set forth circumstances under which she could have reasonably held that belief. Rather than simply advancing Ms. Lind’s subjective opinion, which is all that the affidavit accomplishes, the plaintiff was required to establish an objective, factual basis sufficient for a trier of fact to determine that Ms. Lind’s belief was reasonable. As this factual basis was not established, I would affirm the summary judgment.

      . We note that in footnote five, the Simms court specifically recognized "[s]ome insurance companies have broadened the coverage offered under their non-owned auto clauses. Some policies cover, in addition to use with permission, 'use which is reasonably believed to be with the permission of the owner.'... The Butler's Allstate policy includes none of these expansive clauses.” (Emphasis added.) The inclusion of this footnote certainly supports Ms. Armstrong’s inference that Simms may have been decided differently if such language had been included in the relevant policy language.


author: AMY, Judge. THIBODEAUX, Chief Judge,

text:
    Benny Ray BARNES, et ux. v. John L. BASS, et al.
    No. 2006-80.
    Court of Appeal of Louisiana, Third Circuit.
    June 7, 2006.

      Whit M. Cook, II, Baton Rouge, LA, for Defendant/Appellant, Merit Mortgage, LLC.
    Lloyd E. Hennigan, Jr., Hennigan and Walters, Jena, LA, for Defendant/Appel-lee, Bass Construction Company.
    Donald Wilson, Gaharan & Wilson, Jena, LA, for Plaintiffs/Appellees, Benny Ray Barnes, Ora M. Barnes.
    Michael H. Pinkerton, Frilot, Partridge, Kohnke & Clements, L.C., New Orleans, LA, for Third Party Appellees, New South Federal Savings Bank, Merit Mortgage, LLC.
    John L. Bass, Newellton, LA, in Proper Person.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, MARC T. AMY, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   AMY, Judge.

liThe defendant mortgage broker appeals a determination she negligently failed to inform the plaintiff borrowers of the merits of placing funds owed to their builder in an escrow fund. After the builder refused to return the funds paid directly to him and the prospective mortgage was denied, the plaintiffs filed the instant suit against the defendant builder and against the defendant mortgage broker. The mortgage broker appeals the trial court’s award of damages to the plaintiffs. For the following reasons, we reverse in part and render.

Factual and Procedural Background

The plaintiffs, Benny and Ora Barnes, sought to build a house on property they owned in LaSalle Parish, Louisiana. Through an acquaintance, the Barneses met John Bass, a contractor. According to Mr. Barnes, Mr. Bass indicated that he could construct the home for $126,700.00. Mr. Barnes also testified as to the contract he and Mrs. Barnes entered into with Mr. Bass, an agreement evidenced in the record by a document entitled “Proposal.” The proposal, contained on a “John L. Bass Construction Co.” form, bears Mr. and Mrs. Barnes’ signatures and a “Date of Acceptance” of August 11, 2001. The proposal indicates that Mr. and Mrs. Barnes were to pay “10% down” for the construction. Both Mr. and Mrs. Barnes confirmed that they negotiated the contract with Mr. Bass.

According to Mr. Barnes, Mr. Bass referred the couple to Beverly Buckner, a mortgage broker with Merit Mortgage, LLC. Ms. Buckner explained that, although she had not met Mr. Bass, Mrs. Barnes informed her that she and her husband had been referred by the contractor. Ms. Buckner testified as to the parties’ relationship, which is evidenced, in part, by various documents. Among the documents contained 12in the record is the “Mortgage Loan Origination Agreement.” The agreement is dated October 16, 2001.

Ms. Buckner explained that she pursued a “construction-perm mortgage” for the Barneses. She explained that this type of mortgage is an interim loan used for the construction portion of the project and that another lender is obtained “who will take on the permanent loan after the home is built.” Ms. Buckner submitted an application for the mortgage to New South Federal Savings Bank. In an attempt to obtain additional funds, the parties sought a $149,900.00 mortgage. According to Ms. Buckner, New South sought verification that the Barneses were in compliance with the building contract’s requirements and, accordingly, sought documentation that they had paid ten percent of the contract price to Mr. Bass. According to testimony at trial, a $14,900.00 money order was presented to Mr. Bass. Thereafter, and in keeping with the actual construction price, Mr. Bass retained $12,670.00 of that figure.

Following the exchange of funds, New South did not approve the Barneses’ application due to its disapproval of Mr. Bass as the contractor. According to Sharon Lynn, Vice President and Regional Manager of New South, the Barneses’ application remained viable, but they were required to find a different contractor. However, the Barneses did not choose another contractor to complete the project. Mr. Barnes testified that, although they tried, they were unable to recover the funds paid to Mr. Bass.

The plaintiffs filed the instant matter in April 2002. They named both Merit Mortgage and Mr. Bass as defendants. The petition sought the return of the funds | aprovided to Mr. Bass, “plus all fees paid by petitioners to defendant Merit, all actual and compensatory damages as the court may find appropriate in the premises, reasonable attorney’s fees for the institution and prosecution of the action and for all costs of court.”

Following a bench trial, judgment was entered in favor of the plaintiffs. Against Mr. Bass, the trial court awarded $12,670.00 for the unreturned funds, as well as $12,670.00 for “general damages on account of the conversion of their money and all los[s]es sustained as a result of their home not being built as expected!.]” Further, and relevant to this appeal, the trial court concluded that “Defendant Merit’s fault, even though it had a contractual relationship with petitioners, was obviously negligent in rendering the advice to pay defendant Bass the down payment, rather than depositing same in an escrow account for Bass’ credit in the event that [the] proposed building construction loan was approved.” Each defendant was found to be “jointly liable for one-half petitioners’ damage.”

Merit Mortgage appeals, arguing that the trial court erred in: 1) concluding that it was negligent; 2) concluding that Mr. Bass’ conduct was not a superseding intervening cause; 3) concluding that the Barneses were not comparatively at fault; 4) concluding that the clean hands doctrine does not prohibit recovery; 5) awarding general damages; 6) awarding an excessive amount of general damages; and in 7) awarding $366.21 in incidental costs. No appeal was filed on behalf of Mr. Bass.

Discussion

Merit Mortgage first questions the trial court’s determination that it was negligent in failing to advise as to the use of an escrow account for the deposit made to Mr. Bass. It acknowledges that a mortgage broker may owe a duty to make 1 ¿disclosures associated with the loan process, to assist the clients in the loan approval process, and to protect the clients’ interest in dealing with a potential lender. However, it argues that no duty exists that requires a mortgage broker to protect a client’s interest in transactions with a third party.

Louisiana Civil Code Article 2315 provides that: “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” In considering whether to impose liability under Article 2315, the courts of this state utilize the duty-risk analysis. Lemann v. Essen Lane Daiquiris, Inc., 05-1095 (La.3/10/06), 923 So.2d 627. A plaintiff seeking to establish a negligence claim must prove: 1) the existence of a duty to conform one’s behavior to a specific standard; 2) the defendant failed to conform to that duty; 3) the conduct was a cause in fact of the plaintiffs injuries; 4) the conduct was a legal cause of the plaintiffs injuries; and that 5) actual damages resulted. Id.

The threshold question of whether the defendant owed the plaintiff a duty is a question of law. Lemann, 923 So.2d 627. In “deciding whether to impose a duty in a particular case, the court must make a policy decision in light of the unique facts and circumstances presented.” Id. at 633. The court must inquire as to “whether the plaintiff has any law (statutory, jurisprudential, or arising from general principles of fault) to support the claim that the defendant owed him a duty.” Id.

First, we find no jurisprudential or statutory support for a determination that Merit Mortgage, as a mortgage broker, owed a duty to advise the plaintiffs as to the use of an escrow account. Furthermore, the application of general fault principles, noted in Lemann, is unhelpful given the lack of particular information in the record before us. Rather, the facts developed by the plaintiffs leave the court with little | ¡^information regarding the practices/standards associated with the mortgage broker/borrower relationship.

In this regard, the record indicates, at most, that Merit Mortgage did not counsel the Barneses regarding the use of an escrow account in dealing with their contractor. Later, the contractor failed to return the plaintiffs’ funds when he was not approved as the contractor during the mortgage loan process. Even with these facts, however, the plaintiffs did not demonstrate that this action deviated from the mortgage broker’s duty and that such a deviation caused the ultimate harm suffered. In this regard, the plaintiffs’ presentation is inadequate to prove duty, breach, and legal cause/scope of the duty elements of the duty/risk analysis. Accordingly, the trial court’s determination as to negligence against Merit Mortgage is not supported by the record.

Neither does the record indicate that Merit Mortgage is liable due to a breach of a contractual obligation. “The Mortgage Loan Origination Agreement” indicates |fithe following under the “Services to be performed” section:

Broker agrees to perform all mortgage loan broker services normally and customarily performed in connection with the origination of mortgage loans but not limited to the Services described below. Broker and Borrower both agree that under this agreement, Broker is providing mortgage loan brokering services services [sic] on behalf of Borrower as Borrower’s agent.
(a) taking information from the borrower and fil[l]ing out the application;
(b) analyzing the prospective borrower’s income and debt and pre-qualifying the prospective borrower to determine the maximum mortgage that the prospective borrower can afford;
(c) educating the prospective borrower in the home buying and financing process, advising the borrower about the different types of mortgage loan products and demonstrating how closing costs and monthly payments would vary under each product;
(d) collecting financial information (tax returns, bank statements) and other related documents that are part of the application process;
(e) initiating/ordering VOEs and VODs;
(f) initiating/ordering requests for mortgage and other mortgage loan verifications;
(g) initiating/ordering appraisals;
(h) initiating/ordering inspections and engineering reports;
(i) providing disclosures (truth and lending, good faith estimate, others) to the borrower;
(j) assisting the borrower in understanding and clearing credit problems;
(k) maintaining regular contact with the borrower, realtors and mortgage lender, between application and closing to apprise them of the status of the application and to gather any additional information as needed;
(l) ordering legal document;
(m) determining whether the property was located in a flood zone or ordering such service; and
(n) participating in the mortgage loan closing.

The delineated services are not applicable to the plaintiffs’ claim regarding advice as to the use of an escrow account in this initial contract with the builder. Furthermore, the plaintiffs’ lack of specific evidence is again problematic in considering the expansive services statement opening the section. The statement indicates that the “[b]roker agrees to perform all mortgage loan broker services |7normally and customarily performed in connection with the origination of mortgage loans[.]” Again, the record leaves the court without information as to what services are “normally and customarily” performed by a mortgage loan broker in this context.

Whether based on its determination as to negligence on the part of Merit Mortgage or based on its reference to the contractual relationship between Merit Mortgage and the plaintiffs, the trial court’s ruling was in error. Accordingly, we reverse the judgment entered against Merit Mortgage.

Discussion of the remaining assignments of error is pretermitted due to the above resolution.

DECREE

For the foregoing reasons, the judgment of the trial court, insofar as it was entered against the appellant, Merit Mortgage, LLC, is reversed. The plaintiffs’ claim against Merit Mortgage is dismissed. In all other respects, the judgment is affirmed. All costs of this proceeding are assigned to the appellees, Benny Ray Barnes and Ora Mae Barnes.

REVERSED IN PART AND RENDERED.

THIBODEAUX, Chief Judge, dissents and assigns written reasons.

SAUNDERS, J., dissents for the reasons assigned by Chief Judge THIBODEAUX.

THIBODEAUX, Chief Judge,

dissenting.

hThe majority concludes that the record is insufficient from an evidentiary standpoint to establish what duty is owed to a plaintiff by a mortgage broker. General fault principles are unhelpful, the majority says, in the context of this particular case because the facts are lacking to gauge the correct practices or standards associated with a mortgage broker’s/borrower’s relationship. I disagree.

Louisiana Revised Statutes 6:1082 articulates the purpose of the Residential Mortgage Lending Act. Its purpose is “to protect consumers in the most important financial investment most will make, the purchase of a home, by requiring the licensing and certification of residential mortgage lenders.” By recognizing that “unqualified individuals may injure or mislead the public,” the Residential Mortgage Lending Act seeks “to promote the safety and welfare of the people of the state by providing for regulatory oversight and by establishing educational requirements.” Under the act, a mortgage brokerage contract must be in writing and “shall describe the nature of the mortgage broker’s relationship with the borrower.” La.R.S. 6:1098.

The Mortgage Loan Origination Agreement entered into between Mr. and Mrs. Barnes and Merit Mortgage, in my view, adequately describes the nature of | aMerit Mortgage’s relationship with Mr. and Mrs. Barnes and provides specific contractual duties. Thus, Mr. and Mrs. Barnes may recover under breach of contract principles or under delictual fault principles. Section (c) of the contract states that the mortgage broker is responsible for “educating the prospective borrower in the home buying and financing process.... ” Merit Mortgage was also responsible for “providing disclosures (truth and lending, good faith estimate, others), to the borrower.” Section (i). Moreover, Merit Mortgage had an obligation of “maintaining regular contact with the borrower, realtors, and mortgage lender, between application and closing to apprise them of the status of the application and to gather any additional information as is needed.” Section (k). Merit Mortgage was aware that the loan was pending, i.e., on hold, on October 24, 2001. Mrs. Buckner, the sole owner of Merit Mortgage, knew on that day that the loan may be a problem because of the contractor’s questionable past personal and professional record. Yet, she failed to advise Mr. and Mrs. Barnes not to pay the downpayment or to alternatively place the downpayment into an escrow account. Certainly, the trial judge was justified in concluding that Mrs. Buckner had failed to honor her duty of gathering any additional information by not ascertaining the reason for the disapproval of the loan. Further, a contractual duty of the mortgage broker existed to “educate the prospective borrower.” Mrs. Buckner should have educated the borrowers by advising them to perhaps place the money in escrow. Mr. and Mrs. Barnes were unsophisticated buyers and these very disclosures under Section (i) of the contract should have been provided to them.

Additionally, Merit Mortgage was acting as the mandatary for Mr. and Mrs. Barnes. Consequently, Merit Mortgage was responsible for the loss which Mr. and Mrs. Barnes sustained as a result of Mrs. Buckner’s failure to perform. _JjLa.Civ.Code art. 3001. Mrs. Buckner’s duties to perform were delineated in the Mortgage Loan Origination Agreement. It was thus unnecessary and irrelevant to submit proof of the “customary” duties of a mortgage broker.

Finally, liability may be imposed under the general delictual articles of our Civil Code, Articles 2315, 2316, and 2317. While there is no specific statutory authority delineating the duty of a mortgage broker, we can certainly craft the duties owed based on these general delictual articles and Article 3001 of our Civil Code. Failure to do so, in my view, disregards the expansiveness of Article 2315 and our delictual liability rules in Louisiana. See, e.g., Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (1971).

For the foregoing reasons, I respectfully dissent.

      . According to testimony at trial, the Barnes-es sought funds in addition to the original $126,700.00 price contracted for by the parties. A second contract, reflecting a $149,900.00 construction price, and again providing that "ten (10%) percent shall be paid at the time of the execution of this contract,” was completed for presentation to New South. It is contained in the record.

        . See La.R.S. 6:1098, which indicates that the nature of the mortgage broker/borrower relationship is as follows:
      § 1098. Residential mortgage loan brokerage contracts
      A. Each residential mortgage loan brokerage contract shall be in writing and signed by all contracting parties. The mortgage broker shall retain a signed copy of the residential mortgage loan brokerage contract in the customer’s file.
      B. The mortgage broker must provide the prospective borrower with a written “Mortgage Loan Origination Agreement” no later than three days after the initial loan application date. The written agreement shall describe the nature of the mortgage broker's relationship with the borrower and the manner in which the mortgage broker is compensated for his services. Such disclosures may be incorporated into the brokerage contract or provided in a separate document.
      C. The written disclosures provided to the borrower shall also contain the following information as applicable:
      (1) The name, address, and telephone number of the originator.
      (2) The name, address, and telephone number of the residential mortgage lender by whom the originator is supervised.
      (3) The name, address, and telephone number of the residential mortgage lender by whom the originator is employed.


author: DECUIR, Judge. COOKS, J.,

text:
    Carl Harris HESSE, et al. v. CHAMP SERVICE LINE, et al.
    No. 2005-1565.
    Court of Appeal of Louisiana, Third Circuit.
    June 7, 2006.
    Rehearing Denied July 26, 2006.

      L. Paul Foreman, Raggio, Cappel, Cho-zen & Berniard, Lake Charles, LA, for Defendant/Appellant, Investors-Ryan.
    Thomas Justin Miller, Waller & Associates, Mandeville, LA, for Defendant/Appel-lee, Travelers Insurance Company.
    John R. Walker, Allen & Gooch, Metair-ie, LA, for Defendant/Appellee, GKN Parts.
    Joe A. Brame, Brame & McCain, Lake Charles, LA, for Defendant/Appellee, The Goodyear Tire & Rubber Company.
    D. Carson Marcantel, Delatte, Edwards & Marcantel, Todd C. Comeaux Maley, Comeaux & Falterman, Baton Rouge, LA, for Plaintiff/Appellee, Carl Harris Hesse.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, JIMMIE C. PETERS, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   DECUIR, Judge.

1 ¶ Defendant, Investors-Ryan, appeals a judgment finding it liable for damages suffered by Carl Hesse, an employee of Investors-Ryan’s lessee, Goodyear Tire & Rubber Company.

FACTS

Carl Hesse was employed as a mechanic for Goodyear on August 18, 1990. While inspecting the underside of a vehicle prior to changing the water pump, Hesse hung a portable work light on the fuel pump to illuminate the area. When Hesse reached for the water pump, he received an electrical shock which rendered him unconscious and caused severe and permanent disabling injuries.

Hesse alleges that at the time of his injury, local codes required the installation of Ground Fault Circuit Interrupters to protect workers from this type of injury. Neither the building owner/lessor, Investors-Ryan, nor the lessee, Goodyear, installed these devices. Hesse further alleges liability on the part of Investors-Ryan based on negligence and strict liability for the failure to install the devices.

A jury found Investors-Ryan liable and it lodged this appeal.

DISCUSSION

Investors-Ryan contends that the jury erred in finding that it knew or should have known of an unreasonable risk of harm in the electrical system and in finding that it had custody and control or “garde” of the premises. The first question addresses itself to the negligence claim while the second is crucial to the strict liability issue.

This court discussed negligence and strict liability in Gray v. Economy Fire & Cas. Ins. Co., 96-667, pp. 6-9 (La.App. 3 Cir. 11/6/96), 682 So.2d 966, 970-71 (footnotes omitted):

To prevail on a negligence claim under La.Civ.Code art. 2315, the plaintiff must prove by a preponderance of the evidence that: (1) | ^defendant had a duty to conform his conduct to a specific standard (duty); (2) defendant failed to conform his conduct to the appropriate standard (breach of duty); (3) defendant’s conduct was the cause-in-fact of plaintiffs injuries (cause-in-fact); (4) defendant’s conduct was a legal cause of plaintiffs injuries (the risk and harm caused to plaintiff was within the scope of the protection afforded by the duty); and (5) plaintiff incurred actual damages (damages). Theriot v. Lasseigne, 93-2661 (La.7/5/94); 640 So.2d 1305; Faucheaux v. Terrebonne Consolidated Government, 615 So.2d 289 (La.1993); Roberts v. Benoit, 605 So.2d 1032 (La.1991); Fowler v. Roberts, 556 So.2d 1 (La.1989). A negative answer to any of the above inquiries will result in the determination of no liability. Mathieu v. Imperial Toy Corp., 94-0952 (La.11/30/94); 646 So.2d 318.
A plaintiff seeking to recover under La.Civ.Code art. 2317 must prove by a preponderance of the evidence that: (1) the thing which caused his damage was in the custody of the defendant; (2) the thing had a condition that created an unreasonable risk of harm; and (3) the defective thing caused the plaintiffs injuries. Spott v. Otis Elevator Company, 601 So.2d 1355 (La.1992); Socorro v. City of New Orleans, 579 So.2d 931 (La.1991); Morell v. City of Breaux Bridge, 94-1378 (La.App. 3 Cir. 5/31/95); 660 So.2d 882, writ denied, 95-2608 (La.1/12/96); 666 So.2d 321.
In Oster v. Dept. of Trans. & Development, 582 So.2d 1285 (La.1991), the Louisiana Supreme Court discussed the difference between negligence and strict liability:
In essence, the only difference between the negligence theory of recovery and the strict liability theory of recovery is that the plaintiff need not prove the defendant was aware of the existence of the “defect” under a strict liability theory. Under the negligence theory, it is the defendant’s awareness of the dangerous condition of the property that gives rise to a duty to act. Under a strict liability theory, it is the defendant’s legal relationship with the property containing a defect that gives rise to the duty. Loescher v. Parr, 324 So.2d 441, 446 (La.1976). Under both theories, the absence of an unreasonably dangerous condition of the thing implies the absence of a duty on the part of the defendant.
(Footnote omitted).
Therefore, the owner of immovable property has a duty to take reasonable measures to protect against an unreasonable risk of harm or danger. Hebert v. Southwest Louisiana Electric Membership Corporation, 95-405 (La.App. 3 Cir. 12/27/95); 667 So.2d 1148, writs denied, 96-0277 (La.5/17/96); 673 So.2d 607, 96-0798 (La.5/17/96); 673 So.2d 608. In the inquiry, the court should consider a broad range |sof social, economic, and moral factors including defendant’s cost of avoiding the risk and the social utility of plaintiffs conduct at the time of the accident. Tillman v. Johnson, 94-0480 (La.App. 1 Cir. 3/3/95); 652 So.2d 605; Townsend v. Westinghouse Elevator Corp., 25,966 (LaApp. 2 Cir. 8/17/94); 641 So.2d 1022, unit denied, 94-2371 (La.11/29/94); 646 So.2d 403; Celestine v. Union Oil Company of California, 93-1330 (La.App. 3 Cir. 5/4/94); 636 So.2d 1138, unit granted, 94-1868 (La.11/11/94); 644 So.2d 660, affirmed, 94-1868 (La.4/10/95); 652 So.2d 1299. But, the mere fact that an accident or injury occurs is not proof that the thing presents an unreasonable risk of harm. Manuel v. Wal-Mart Stores, 93-1243 (La.App. 3 Cir. 5/4/94); 640 So.2d 579, writ denied, 94-1442 (La.9/23/94); 642 So.2d 1291; Matherne v. Somme, 94-55 (La.App. 5 Cir. 5/31/94); 638 So.2d 437, Hughes v. Green, 609 So.2d 991 (La.App. 4 Cir.1992), writ denied, 612 So.2d 82 (La.1993). Further, not every minor imperfection or defect in a thing will give rise to delictual responsibility. The imperfection of the thing must be of such a nature as to constitute a dangerous condition that would be reasonably expected to cause injury to a prudent person using ordinary care under the circumstances. McBride v. Cracker Barrel Stores, Inc., 94-370 (La.App. 3 Cir. 11/2/94); 649 So.2d 465. A landowner is not an insurer against the possibility of an accident, the landowner must act as a reasonable person in view of the probability of injury to another. Lejeune v. Acadia Parish School Board, 517 So.2d 1030 (La.App. 3 Cir.1987).

We will first address the contention that the jury erred in concluding that Investors — Ryan had custody and control of the premises. Ownership itself creates a presumption of “garde” or custody and control; however, the presumption is re-buttable. Johnson v. Conclasure, 00-1383 (La.App. 3 Cir. 3/8/01), 780 So.2d 1261. Custody and control is largely a question of fact, not law, and cannot lie in both an owner and a lessee simultaneously. Guillory v. Foster, 93-996 (La.App. 3 Cir. 3/2/94), 634 So.2d 1372.

In the present case, Investors-Ryan had not in fact been on the premises in many years. Goodyear had solely occupied and maintained the premises. Therefore, unless Investors-Ryan can be said to have custody and control arising from its obligation to maintain the structure in conformity with applicable codes, custody and control resided with Goodyear.

|4Both the question of Investors-Ryan’s custody and control and whether it knew or should have known of the defect turn on the compliance with building codes. The evidence clearly established that code at the time of the accident required GFCI outlets and that the building was not so equipped. However, the evidence also established that the building was in compliance with the codes applicable at the time of its construction and subsequent renovations. Moreover, the evidence indicates that building owners are not required to update buildings to meet new code requirements unless undergoing renovation or reconstruction. Accordingly, we find that the jury erred in concluding that Investors-Ryan had custody and control of the premises and that it knew or should have known of the defect in the premises.

Investors-Ryan also raises an issue regarding its third party demand against Goodyear. The judgment herein clearly states that the third party demand was severed and was to be determined after the jury verdict. We find no judgment regarding this issue in the record. Consequently, it is not before this court. In addition, Goodyear filed an answer to appeal and Hesse filed a motion to dismiss the answer as improper. We find the issue moot in that the issue raised by Goodyear was also raised by Investors-Ryan and resolved herein.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed. All costs of these proceedings are taxed to Carl Hesse.

REVERSED.

COOKS, J., dissents and assigns written reasons.

COOKS, J.,

dissents.

hi respectfully disagree with the majority opinion reversing the trial court’s judgment finding Investors-Ryan liable for the damages suffered by Carl Hesse.

The trial court’s finding that Investors-Ryan had garde of the premises was not manifestly erroneous. The leases agreement, in Paragraphs 2, 5 and 27, specifically set forth the obligation of Investors-Ryan to comply with all applicable laws and ordinances. This court previously in Hesse v. Champ Service Line, 97-1090 (La.App. 3 Cir. 2/4/98), 707 So.2d 1295, addressed the issue of whether Goodyear assumed responsibility of the leased premises under the terms of the lease. We held at that time that no provision of the lease provided that Goodyear assumed responsibility for the condition of the leases premises. Specifically, Judge Decuir, writing the majority opinion, in which I concurred, stated:

Neither this provision nor any other provision of the lease provides that Goodyear assumes responsibility for the condition of the leased premises.

Hesse, 707 So.2d at 1298.

If Goodyear did not assume the responsibility for the wiring of the building (as we previously held) and the lease requires that the lessor (Investors-Ryan) make all changes or installations required to conform with the applicable laws and ordinances, it follows that Investors-Ryan had garde of the wiring of the leased premises. Otherwise, neither the lessor nor the lessee would have garde of the premises — an 12absurd consequence which the law did not envision. Therefore, I respectfully dissent and would affirm the lower court’s judgment.


author: PAINTER, Judge. PICKETT, Judge,

text:
    Richard G. TRAHAN and Alton J. Trahan v. Merry Louise MANLEY, Leola Terrebonne, Gary E. Theall and Sandra Kathryn Lehman.
    No. 2005-1175.
    Court of Appeal of Louisiana, Third Circuit.
    June 7, 2006.

      Reule P. Bourque, Kaplan, LA, for Plaintiffs-Appellants Richard G. Trahan and Alton J. Trahan.
    Gary E. Theall, Abbeville, LA, for Defendants-Appellees Merry Louise Manley, Leola Terrebonne, Gary E. Theall, and Sandra Kathryn Lehman.
    Court composed of MARC T. AMY, MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

bThe Plaintiffs, Richard and Alton Tra-han (“the Trahan brothers”), appeal the trial court’s judgment finding certain real property to be part of the community of acquets and gains formerly existing between each of them and their former wives. Finding that the trial court erred in failing to accept the uncontroverted testimony of Olive Trahan, we reverse.

FACTS

Alton Trahan and Leola Terrebone were married in 1964. Richard Trahan, Alton’s brother, and Merry Louise Manley were married in 1965. In 1985 and 1986, the Trahan brothers executed a number of acts of sale whereby they acquired ownership of two tracts of land in Vermilion Parish. There was no declaration of marital status in any of the acts of sale, and the wives did not execute any recognition that the property was part of their husbands’ separate estates.

Richard and Merry were divorced by judgment dated October 9, 1989, and, on November 10, 1989, the property purchases made in 1985 and 1986 were finally recorded. No settlement of the community property had been entered between them at the time of the trial of this matter.

In 1990, Alton and Leola divorced. They executed a community property settlement which did not mention the disputed property. In 1997, both Merry and Leola executed mineral leases of the disputed property in favor of SKH Energy Partners, L.P. The Trahan brothers filed a “Petition in Slander of Title,” alleging that Merry and Leola were without rights to enter the leases. The Trahan brothers dismissed their action against SKH Energy pursuant to a settlement agreement and, on February 22, 1999, the main demand was dismissed pursuant to a motion to [2dismiss for mootness and exceptions of prematurity and no right of action. On January 12, 2000, in fulfillment of a contingency fee contract, Merry and Leola conveyed an interest in the property to their legal representative, Gary Theall and his wife, Sandra Lehman.

On February 2, 2001, the Trahan brothers filed this suit asking for a declaratory judgment recognizing them as sole owners of the disputed property. After a trial on the merits, the trial court concluded that the Trahan brothers had failed to rebut the presumption that the disputed property was community in nature. The Trahan brothers appeal.

DISCUSSION

Louisiana Civil Code Article 2340 provides that “[tjhings in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove that they are separate property.” The presumption of community applies regardless of the source of the property. Lanza v. Lanza, 04-1314 (La.3/2/05), 898 So.2d 280. The party who seeks to rebut the presumption, in this case the Trahan brothers, must prove, by a preponderance of the evidence, that the property is separate. Talbot v. Talbot, 03-0814 (La.12/12/03), 864 So.2d 590; Ross v. Ross, 02-2984 (La.10/21/03), 857 So.2d 384. The trial court found that the Trahan brothers did not carry this burden. “[A] trial court’s findings regarding the nature of the property as community or separate is a factual determination subject to manifest error review. Biondo v. Biondo, 99-0890, pp. 4-5 (La.App. 1 Cir. 7/31/00), 769 So.2d 94, 99.” Ross, 857 So.2d at 395.

|sThe record shows that prior to being acquired by the Trahan brothers, the disputed property was owned by their uncle, Allison Trahan. On May 15, 1985, after the death of Allison Trahan, the Trahan brothers obtained “[a]ll of Vendors’ present or future undivided right, title and interest in and to the following two (2) tracts of land” from their cousins, heirs of Allison Trahan, via documents entitled “Private Act of Sale.” The documents each provided that:

This sale is made and accepted for and in consideration of the price and sum of ONE HUNDRED AND NO/100 DOLLARS, cash, which the said purchaser has well and truly paid in ready and current money to the vendor, who hereby acknowledge receipt thereof and grants full acquittance and discharge therefor.

At trial, the Trahan brothers testified that they did not actually pay any of the cousins for their property rights but that their cousins intended to donate the property to them. Two of the cousins testified at trial that they did not accept money for the property. However, as the trial court noted, neither stated whether they wanted to donate their interest to the brothers exclusively or to the brothers and their wives. The trial court concluded that the transactions were sales. The Trahan brothers do not dispute this finding on appeal.

Prior to his death, Allison Trahan executed a power of attorney in favor of his wife, Hazel R. Trahan, which gave her the complete authority to “bargain, grant, sell, convey, transfer, change, option [or] dedicate to public use ... for any sum of money of other consideration” any and all of his property, both movable and immovable. Unknown to the family, Hazel sold the disputed property to her daughter from a prior marriage, Betty Jo Yeary, for ten dollars and “other consideration.” After Allison’s death, the Trahan brothers, expecting to inherit the property, searched for a will. The only will found was unsigned. At about this time, they discovered the sale to Yeary. 14They filed a suit attempting to rescind the sale to her based on lesion beyond moiety. The outcome of that suit is unknown, as no judgment has been introduced into the record. However, there is no evidence in the record which would support a finding that either the power of attorney or the transfer to Betty Jo Yeary was invalid. On April 21, 1986, the Trahan brothers bought all of Betty Jo Yeary’s rights to the property for $6,700.00. The brothers testified that they obtained the money for this purchase from their mother, Olive Trahan, and a copy of a certified check for $6,700.00 from Olive Trahan to “Betty Jo Yeary & Her Attorney Raymond A. Beyt,” dated February 17, 1986, was introduced into the record. Given this information, we find that the trial court’s finding that the transfers made by the cousins to the Trahan brothers were sales is not relevant to the outcome of the case since the property had been validly transferred to Yeary prior to the death of Allison Trahan. Therefore, we need only consider whether the property was acquired by the brothers as their separate property. Property acquired with separate funds constitutes separate property. La.Civ.Code art. 2341.

A deposition of the then 95-year-old Olive Trahan was introduced at trial. The brothers assert that it shows her intention to give the money, and thereby the property, to her sons as their separate property. The trial court, however, found the deposition to be of little value. We disagree. Although elderly, Mrs. Trahan was firm in her testimony that she gave the brothers the money to purchase the disputed property and that she intended it to be the separate property of her sons and did not intend a donation to their spouses. Her testimony that the money came from her is supported by a copy of a certified check dated February 17, 1986, in the amount of $6,700.00 made out to “Betty Jo Yeary & her attorney Raymond A. Beyt” and showing the |firemitter as Olive D. Trahan. No evidence was admitted to controvert Mrs. Trahan’s testimony, and her former daughters-in-law testified that they knew her to be an honest person. Although the manifest error standard of review applies to the trial court’s findings of fact, “[a]n appellate court is not required, ... to affirm the trier of fact’s refusal to accept as credible uncontradict-ed testimony or greatly preponderant objectively-corroborated testimony where the record indicates no sound reason for its rejection and where the factual finding itself has been reached by overlooking applicable legal principles.” Mart v. Hill, 505 So.2d 1120, 1127 (La.1987) (citing West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979)). In light of Mrs. Trahan’s testimony, we find that the Trahan brothers have carried their burden of showing, by a preponderance of the evidence, that the disputed property is their separate property.

CONCLUSION

The judgment of the trial court is reversed. Judgment is rendered in favor of the Plaintiffs-Appellants, Richard and Alton Trahan. Costs of this appeal are assessed to the Defendants-Appellees, Merry Louise Manley and Leola Terrebonne.

REVERSED AND RENDERED.

PICKETT, J., dissents and assigns reasons.

PICKETT, Judge,

dissenting.

hi respectfully dissent. In Mart v. Hill, 505 So.2d 1120, 1127 (La.1987), the supreme court stated:

Appellate courts may not disturb the fact findings of the trier of fact in the absence of manifest error. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1979). In Arceneaux, we posited a two part test for the appellate review of facts:
1) The appellate court must find from the record that there is a reasonable factual basis for the finding of the trial court, and
2) The appellate court must further determine that the record establishes that the finding is not clearly wrong (manifestly erroneous).
Arceneaux, 365 So.2d at 1333; B and L Associates, Inc. v. Crump, 369 So.2d 1094, 1095 (La.App. 1st Cir.1979).
Accordingly, if an appellate court concludes that the trial court’s factual findings are clearly wrong, the mere fact that some record evidence appears which would furnish a reasonable factual basis for the contested findings does not require affirmance. Davis v. Owen, 368 So.2d 1052, 1056 (La.1979). Although appellate courts must accord great weight to the factual findings of the trial judge, these same courts have a duty to determine if the fact finder was justified in his conclusions. See, e.g., Parker v. Rhodes, 260 So.2d 706, 717 (La.App. 2d Cir.1972). An appellate court is not required, because of the foregoing principles of appellate review, to affirm the trier of fact’s refusal to accept as credible uncontradicted testimong or greatlg preponderant objectively-corroborated testimony where the record indicates no sound reason for its rejection and where the factual ñnd-ing itself has been reached by overlooking applicable legal \ ¡principles. West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1150 (La.1979).

In the matter before us it is clear from a review of the record that the trial court carefully considered Mrs. Olive Trahan’s testimony. The trial court did state clear and sound reasons for rejecting that testimony. This finding of fact by the trial court clearly has a reasonable basis. Therefore, I find no manifest error on the part of the trial court and would affirm the trial court’s judgment.


text:
    Charles T. HALEY, M.D. Petitioner v. Michael HARBIN, Individually and Jacqueline Harbin, Individually and as Administratrix of the Estate of Madison Parker Harbin, Deceased Respondents.
    No. 2005-IA-00989-SCT.
    Supreme Court of Mississippi.
    Aug. 25, 2005.
   ORDER

This matter came before the Court en banc on the Emergency Petition for Permission to Appeal Interlocutory Order filed by counsel for Charles T. Haley, M.D. Also before the Court is the response in opposition to the petition filed by counsel for Michael Harbin, et al. and Haley’s reply to that response. Haley seeks leave to appeal from the order signed by the Circuit Court of Grenada County, Mississippi on May 4, 2005, and entered on or about June 6, 2005, in cause number 2004-0264CVL, in which the circuit court granted Harbin’s motion to compel certain discovery responses.

After due consideration the Court finds that the requirements of M.R.A.P. 5 have been met, and the Emergency Petition for Permission to Appeal Interlocutory Order is well taken and should be granted. The Court further finds that no further briefing is needed and will proceed to a consideration of the merits.

In the present matter, the trial court ordered Haley to respond to Harbin’s Amended Requests for Admissions and 2nd Set of Interrogatories. The Amended Requests for Admissions are 33 pages in length and contain approximately 250 separate requests for admissions. The 2nd Set of Interrogatories attaches 117 pages of printouts from a fetal heart monitoring device. On each printout, numerous marks made by the device were highlighted and lettered by Harbin. The interrogatories direct Haley to answer numerous questions regarding each highlighted and lettered mark. The first interrogatory alone directs Haley to make 1,802 separate responses.

Rules 26, 33, and 36 of the Mississippi Rules of Civil Procedure govern discovery, written interrogatories, and requests for admissions. These rules are clear and unambiguous. Discovery methods, including but not limited to, interrogatories and requests for admissions, are not to be used as a ruse or stratagem to obfuscate the truth or to trick an opposing party into admitting a disputed fact. When justice requires, a protective order shall be entered “to protect a party ... from annoyance, embarrassment, oppression, or undue burden or expense ....” M.R.C.P. 26(d). Pursuant to M.R.C.P, 11, 26, and 37, the trial courts have the authority to impose sanctions for discovery abuses, and they should act promptly to sanction those who abuse the rules.

M.R.C.P. 33(a), which governs written interrogatories, provides, in pertinent part,

Any party may serve as a matter of right upon any other party written interrogatories not to exceed thirty in number .... Each interrogatory shall consist of a single question .... Leave of court, to be granted wpon a showing of necessity, shall be required to serve in excess of thirty interrogatories.

(emphasis added). The number propounded “are to be computed by counting each distinct question as one of the thirty, even if labeled a sub-part, subsection, threshold question, or the like.” M.R.C.P. 33 cmt.

M.R.C.P. 36(a), which governs requests for admissions, requires that “[e]ach matter of which an admission is requested shall be separately set forth.” Although not limited to a specific number, the requests must be reasonable and must be unambiguous. A request is ambiguous if the request is subject to more than one reasonable interpretation. The purpose of requests for admissions is to narrow and define issues for trial. Joseph L. v. Conn. Dep’t of Children & Families, 225 F.R.D. 400, 402 (D.Conn.2005); see also DeBlanc v. Stancil, 814 So.2d 796, 801-02 (Miss.2002). “Properly used, requests for admissions serve the expedient purpose of eliminating ‘the necessity of proving essentially undisputed and peripheral issues of fact.’ ” Wigler v. Elect. Data Syst. Corp., 108 F.R.D. 204, 205 (D.Md.1985) (quoting Syracuse Broadcasting Corp. v. Newhouse, 271 F.2d 910, 917 (2d Cir.1959)). Requests for admissions “ ‘should not be of such great number and broad scope as to cover all the issues [even] of a complex case,’ and ‘[ojbviously ... should not be sought in an attempt to harass an opposing party.’” Wigler, 108 F.R.D. at 206-07 (quoting Lantz v. New York Cent. R. R., 37 F.R.D. 69 (N.D.Ohio 1963)).

This Court finds that the subject requests for admissions and written interrogatories are, in fact, grossly excessive in number, unduly burdensome, and oppressive. Many are confusing, and therefore, ambiguous and fail to comply with the above stated rules of civil procedure. We hold that the trial court abused its discretion in compelling Haley to respond.

The trial court’s order compelling discovery shall be set aside, and this matter shall be remanded to the trial court to reconsider all discovery issues which were pending in the trial court prior to the entry of this order. This court orders the attorneys for Haley and Harbin, prior to attempting to schedule a hearing before the trial court, to commence good faith efforts to narrow the disputed issues, if not in fact to resolve them. Prior to attempting to schedule a hearing, the attorneys for all parties shall certify that they have conferred with opposing counsel concerning these matters. See, e.g., M.R.C.P. 26(c). Should the parties fail to resolve the issues, the party seeking the discovery shall file a motion to compel.

Any party who seeks to propound interrogatories in excess of thirty in number must seek leave of the trial court by filing an appropriate motion. That motion shall state with specificity each separate interrogatory in excess of thirty and the legal basis for the claim of necessity. The trial court shall conduct a hearing at which it will consider each such claim. Leave of court shall only be granted once the requesting party has, in fact, proven necessity. If the trial court finds that any party acted, or failed to act, without good grounds, then the trial court shall impose sanctions as provided for in M.R.C.P. 11, 26, and 37.

As discussed above, requests for admissions must be reasonable and unambiguous. “Each matter of which an admission is requested shall be separately set forth.” M.R.C.P. 36(a). Any party seeking to compel responses to requests for admissions shall file an appropriate motion. The trial court shall conduct a hearing at which it will consider each request. If the trial court finds that any party acted, or failed to act, without good grounds, then the trial court shall impose sanctions as provided for in M.R.C.P. 11, 26, and 37.

We find that the stay entered by this Court on May 25, 2005 shall be lifted. We further find that this Order should be published as an announcement to all members of the Bar.

IT IS THEREFORE ORDERED that the Emergency Petition for Permission to Appeal Interlocutory Order filed by counsel for Charles T. Haley, M.D., is hereby granted.

IT IS FURTHER ORDERED that the stay entered by this Court on May 25, 2005, is hereby lifted.

IT IS FURTHER ORDERED that the circuit court’s order compelling Haley to respond to Harbin’s Amended Requests for Admissions and 2nd Set of Interrogatories is vacated.

IT IS FURTHER ORDERED that this matter is hereby remanded to the Circuit Court of Grenada County, Mississippi, for further proceedings consistent with this Order.

IT IS FURTHER ORDERED that all costs of this appeal are taxed to Michael Harbin, et al.

IT IS FURTHER ORDERED that this Order be published, and that the Clerk of this Court shall spread this Order upon the minutes of the Court and shall forthwith forward a true certified copy hereof to West Publishing Company for publication as soon as practical in the advanced sheets of the Southern Reporter, Second Series (Mississippi Edition).

SO ORDERED.

/s/Michael K. Randolph, MICHAEL K. RANDOLPH, JUSTICE, FOR THE COURT

TO DENY: GRAVES, J.

NOT PARTICIPATING: DIAZ, J.