author: THIBODEAUX, Chief Judge. COOKS, J.,

text:
    Stephen Scull THOMSON v. Lily Marie Steel THOMSON.
    No. 07-988.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 27, 2008.
    Rehearing Denied April 23, 2008.

      Philip Collins Kobetz, Lafayette, LA, for PlaintiffyAppellee, Stephen Scull Thomson.
    Susan L. Theall, Christine M. Mire, The Theall Firm, Lafayette, LA, for Defendant/Appellant, Lily Marie Steel Thomson.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JIMMIE C. PETERS, Judges.
   THIBODEAUX, Chief Judge.

11 This case involves the judicial partition of community property between the plaintiff-appellee, Stephen Scull Thomson (“Thomson”), and the defendant-appellant, Lily Marie Steele Thomson (“Steele”). The parties owned an interest in numerous companies, the majority of which were established for the purchase, development, or maintenance of parcels of real estate. Some of the companies were acquired during the marriage, and some were acquired before the marriage. Prior to the date of the marriage in April 1995, the parties executed a matrimonial agreement regarding their separate assets and the income derived from the separate assets.

Following a six-day bench trial to partition the property, the trial court issued written reasons and a judgment finding that the matrimonial agreement, in general, preserved the fruits of separate property as separate assets. The court then analyzed each asset and its fruits to determine whether distributions from the companies were subject to reimbursement claims or whether the income derived was the result of the labor and industry of the owner of the asset. The trial court then partitioned the community property and calculated the equalizing payment.

Lily Steele filed an appeal, assigning four errors to the trial court regarding its rulings on the matrimonial agreement, the characterization of certain income, the reimbursement claims of Thomson, and the equalizing payment. Stephen Thomson answered the appeal and asserted one assignment of error regarding the characterization of income from two of his separate properties, the reimbursement claim associated with those properties, and the equalizing payment. The parties do not dispute the partition itself regarding which properties were assigned to each.

For the following reasons, we amend and, as amended, affirm the judgment of the trial court.

I

ISSUES

As to Lily Steele’s appeal, we must decide:

(1) whether the trial court erred in determining that the matrimonial agreement reserved the fruits and revenues of separate property acquired before the marriage;
(2) whether the trial court erred in applying a minority ownership interest discount when determining the market value of certain limited liability companies;
(3) whether the trial court erred in determining that distributions of $658,706.00 from Thomson Brothers Construction belong to Thomson’s separate estate; and
(4) whether the trial court erred in determining that Steele owes Thomson $288,332.03 in reimbursements.

As to Stephen Thomson’s appeal, we must decide:

whether the trial court erred in denying Thomson’s reimbursement claims for rental income from Thomson Brothers Investments, LLC, and the return on a passive investment in Park Esplanade Limited Partnership.

II.

FACTS AND PROCEDURAL HISTORY

Lily Steele and Stephen Thomson executed a premarital agreement on April 3, 1995, prior to their marriage on April 22, 1995. The one-page premarital agreement provided in pertinent part as follows:

The parties agree to modify the community property system so that certain properties acquired during the marriage will be characterized as the separate property of the acquiring spouse and that the income or the increase in value of a separate asset shall be or shall remain part of the separate estate of that party’s separate estate.
| aAccordingly, each party shall administer his/her own separate estate so that all income earned from a separate asset or the increase in value of a separate asset shall remain as part of that party’s separate estate.
Pension plan, and/or IRA accounts or earnings attributable to those accounts shall be the separate property of that particular spouse.
And further, Lily M. Steele hereby expressly renounces her right to concur in the alienation, encumbrance or lease of community assets, if such assets are shares of stock, partnership interests, condominium interests, and/or limited liability company interests.

During the marriage, the couple acquired various assets that were either amicably divided or awarded at trial and not disputed in this appeal, including a family home, contents of the home, two vehicles, and a one-third interest in a camp. The-parties also acquired minority ownership interests (less than a 50% ownership interest) in more than a few limited liability companies, each of which owned real estate, and each of which had debt on the real estate owned. Each party had claims for reimbursement, either for one-half of the separate funds used to benefit the community under La.Civ.Code art. 2365, or for one half of the community funds used to benefit a spouse’s separate property under La.Civ.Code art. 2364.

The trial was divided into two phases in order to determine (1) the value of the community interests in the limited liability companies; and (2) the existence and value of each party’s claims for reimbursement. In his thirty-four page Reasons for Ruling, the trial judge provided a comprehensive analysis of his findings at trial. |4Of the numerous rulings, Steele disagrees with and appeals the trial court’s finding that: (1) the premarital agreement reserved the fruits of all separate property as separate; (2) a minority ownership interest discount should be used in determining the fair market value of the real estate owned by the limited liability companies; (3) income from Thomas Brothers Construction, LLC should be classified as Thomson’s separate property; and (4) Steele owes Thomson reimbursement for his use of separate property to pay community obligations under La.Civ.Code art. 2365.

Thomson answered Steele’s appeal and also appeals the trial court’s denial of reimbursement to him with regard to rental income from Thomson Brothers Investments, LLC, and income on a passive investment that he made prior to marriage in Park Esplanade Limited Partnership. For the following reasons, we amend and, as amended, affirm the judgment of the trial court.

III.

LAW AND DISCUSSION Standard of Review

The trial court is vested with great discretion in effecting a fair partition of community property. Collier v. Collier, 00-1263 (La.App. 3 Cir. 7/18/01), 790 So.2d 759, writ denied, 01-2365 (La.12/7/01), 803 So.2d 30. An appellate court may not set aside a trial court’s findings of fact in absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A reviewing court must keep in mind that if a trial court’s findings are reasonable based upon the entire record and evidence, an appellate court may not reverse such findings even if it is convinced that had it been sitting as trier of fact it would have weighed that evidence differently. Housley v. Cerise, 579 So.2d 973 (La.1991). The basis for this principle of review is grounded | Knot only upon the better capacity of the trial court to evaluate live witnesses, but also upon the proper allocation of trial and appellate functions between the respective courts.

The Matrimonial Agreement

Steele contends that the trial court erred in determining that the premarital agreement reserved the fruits and revenues of separate property acquired before the marriage.

The Louisiana Civil Code provides that the “natural and civil fruits of the separate property of a spouse are community property” but that “a spouse may reserve them as his separate property by a declaration made in an authentic act or in an act-under private signature duly acknowledged.” La.Civ.Code art. 2339. Likewise, La.Civ. Code art. 2331 provides that “[a] matrimonial agreement may be executed by the spouses before or during marriage” and that “[i]t shall be made by authentic act or by an act under private signature duly acknowledged by the spouses.”

The “Marriage Contract” executed by Steele and Thomson prior to marriage in April of 1995 was in authentic form pursuant to La.Civ.Code art. 1833 because it was signed by the parties and two witnesses in the presence of a notary. Steele argues that the agreement preserves as separate property only the fruits of separate property acquired “during” the marriage but does not preserve the fruits of separate property acquired “before” the marriage. We disagree. The specific language at issue is in the following paragraph:

The parties agree to modify the community property system so that certain properties acquired during the marriage will be characterized as the separate property of the acquiring spouse and that the income or the increase in value of a separate asset shall be or shall remain part of the separate estate of that party’s separate estate. (Emphasis ours).

| (¡In the first part of the sentence, the agreement modifies the community property regime, which generally provides that property acquired prior to marriage is separate, pursuant to La.Civ.Code art. 2341, to also include “certain properties acquired during the marriage.” The second part of the sentence following the word “and” provides that the income from “a separate asset shall be” separate, or “shall remain ” separate, indicating that the fruits of any separate asset, whether designated as separate by the agreement or already separate before the agreement, are to remain as part of the separate property.

Steele cites La.Civ.Code art.2053, providing that a doubtful provision must be interpreted in light of the nature of the contract. While we do not find the provision doubtful, it is clear that the nature of this contract was to keep the fruits of a separate property separate along with that piece of property. To apply the contract to post-marriage acquisitions rendered separate by the agreement only, and not apply the contract to pre-marriage acquisitions that are already separate by statute, would be logically untenable. Likewise, Steele’s assertion of La.Civ.Code art.2054 only serves to support the trial court’s ruling. Article 2054 provides:

When the parties made no provision for a particular situation, it must be assumed ■- that they intended to bind themselves not only to the express provisions of the contract, but also to whatever the law, equity, or usage regards as implied in a contract of that kind or necessary for the contract to achieve its purpose.

|7We believe, as did the trial court, that the word “a” in front of “separate asset” means “any” separate asset. Further, the inclusion of income from property acquired before marriage is implied, given the statutory laws on pre-marriage acquisitions, and given the purpose of the contract. As argued by Steele herself, “[e]ach provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.” La.Civ.Code art.2050. We .affirm the trial court’s ruling on this issue and find that the contract preserved the fruits or income, and the increase in value, of all separate property as separate.

Minority Ownership Interest Discount

Steele and Thomson owned fractional minority interests in various limited liability companies. Rather than owning controlling interest, their ownership interests in the companies ranged roughly from a sixteen percent (16%) ownership interest to a thirty-three percent (33%) ownership interest in each company. In determining the value of the community’s interest in each company, the court looked at the appraised value, added the company’s bank accounts, cash, and other assets, deducted the company’s mortgage debt and other liabilities, and then multiplied the net worth of each company by the community’s actual ownership percentage. Finally, the trial court applied a minority ownership interest discount of either twenty percent (20%) or thirty percent (30%) to seven of the eight companies, effectively reducing the value of each asset. The rationale behind such a discount is that owners of fractional minority shares have no control in running the company, making their interest less valuable on the open market.

For example, if a company’s net worth is $100,000.00, and the parties own a twenty percent (20%) interest in the company, the community’s interest in that |scompany would be $20,000.00. If a twenty percent (20%) minority ownership interest discount is applied, the fair market value then becomes $16,000.00, due to a $4,000.00 reduction. Steele contends that the trial court erred in applying such a minority interest discount when determining the fair market value of each of the companies because the community’s ownership interest in each company was not being sold to a third party but was being assigned to one of the parties in the partition. We disagree.

The trial court relied upon Shopf v. Marina Del Ray Partnership, 549 So.2d 833(La.1989), which discussed the proper standard of asset valuation as fair market value rather than book value, although book value may be a factor in determining fair market value. The Louisiana Supreme Court in Shopf defined fair market value as follows:

Fair market value is defined generally as the price that a willing buyer would pay to a willing seller for a certain piece of property in an arm’s length transaction, neither being under any compulsion to buy or sell and both having reasonable knowledge of the relevant facts. See Black’s Law Dictionary 537 (rev. 5th ed 1979).

Shopf, 549 So.2d at 839.

In Shopf the issue was a withdrawing partner’s twelve percent (12%) minority ownership interest in a real estate partnership, and the remaining partners’ acquisition of the twelve percent minority interest at fair market value. When the plaintiff and the remaining partners could not agree as to the value of the plaintiffs share, the plaintiff demanded a judicial determination of the sum due him for the value of his twelve percent interest. Even though the interest in the partnership was not being sold at market or going to an outside investor, the Supreme Court applied a one-third (33.3%) discount in setting the fair market value, explaining as follows:

|9The most significant adjustment must be made in recognition of the fact that plaintiffs share is a minority interest in a closely held business. The determination of the value of-a fractional share in a business entity involves more than fixing the value of the business and multiplying by the fraction being evaluated, especially when the share is a minority interest. A minority interest may be uniquely valuable to the owner, but may have considerably less value to an independent third party, because the interest is relatively illiquid and difficult to market. G. Desmond & R. Kelley, Business Valuation Handbook, ¶ 11.01, 11.07 (1977).

Id. At 840.

The Supreme Court in Shopf further explained that the purchaser already owned or controlled a majority of the shares and had more interest in increasing his percentage than an outside investor would have in acquiring a minority share in the venture. Accordingly, the court ap-, plied the discount, stating that this was necessary “in order to determine the fair market value of plaintiffs share in a true arm’s length transaction.” Id. (Emphasis added). Based upon the foregoing rationale of the Supreme Court in Shopf, we agree with the trial judge in this case wherein he stated: “It is of no consequence that a sale to a third party is not taking place.”

In this case, the experts disagreed. The trial court noted that Steele’s financial expert opined that a minority discount would not be appropriate even if a sale to a third party were intended. On the other hand, Thomson’s expert advocated application of a thirty percent (30%) discount across the board in valuing all of the limited liability companies owned by the community since all ownership interests were minority ’interests. The trial court determined that a minority ownership discount should be applied. However, the court found Steele’s argument persuasive regarding the court’s consideration of each company’s articles of incorporation and operating agreements.

| Accordingly, the trial court analyzed each LLC individually, considered how the other shares in each company were distributed, who had voting rights, encumbrance rights, alienation rights, transfer rights, etcetera, and applied a twenty percent (20%) discount to some companies, a thirty percent (30%) discount to others, and a zero percent (0%) discount to one company. The court’s variances in the amounts of the discounts are not being appealed; rather, the issue is the discountability itself in determining fair market value. We find no abuse of discretion in the trial court’s method of valuation of the community’s ownership interests in the limited liability companies.

Distributions from Thomson Brothers Construction, Inc.

Thomson testified at trial that prior to his marriage he owned three companies with his brother, George: Pelican Real Estate, a real estate business; Thomson Brothers Construction, Inc. (TBC), a construction company; and Thomson Brothers Investments, L.L.C. (TBI), a company that owns two parcels of real estate. The two brothers split the profits from the companies after salaries and operating expenses were paid. Thomson worked for and ran Pelican Real Estate, and his brother worked for and ran the construction company, TBC. The trial court found that deposits of Steve Thomson in the amount of $658,706.00 constituted distributions from TBC that belong to Thomson’s separate estate. These funds are 1n therefore the subject of Thomson’s reimbursement claim based upon his assertion that he used some of the funds to pay for community obligations during the marriage.

Steele contends that the trial court erred in determining that these distributions belong to Thomson’s separate estate because they were a result of his effort, skill, or industry. Therefore, they belong to the community and are not reimbursable to Thomson. Steele cites the Louisiana Civil Code which provides in part that community property comprises property “acquired during the existence of the legal regime through the effort, skill, or industry of either spouse.” La.Civ.Code art. 2338.

In its Reasons for Ruling, the trial court stated as follows:

MR. THOMSON showed deposits from Thomson Brothers Construction, Inc., totaling $685,206.00. MR. THOMSON established that he was not employed by Thomson Brothers Construction, Inc., and that he did not work for the company on a regular basis. He did testify that he made referrals to the construction company of individuals and companies who needed construction work performed, but denied that he was paid for such referrals.
Mr. Thomson was questioned as to several checks totaling $26,500.00 made payable to him from Thomson Brothers Construction, Inc., which indicated “bonus” in the memo section. Mr. Thomson alleged that the coding contained in the memo section was incorrect, but he failed to produce any other witnesses to corroborate this testimony. As such, Mr. Thomson failed to prove that the distributions marked “bonus” were not a result of referrals made by him to the company which would be the result of his effort, skill or industry. Accordingly, the Court will reduce MR. THOMSON’S claim by $26,500.00 and finds that Mr. Thomson received distributions from Thomson Brothers Construction, Inc., in the amount of $658,706.00 that belong to his separate estate.

|12We find no manifest error in the trial judge’s reasoning on this issue or in his reduction of Thomson’s claim for the three checks totaling $26,500.00 (12/30/96 check for $9,500.00; 6/30/97 check for $7,000.00; 11/20/01 check for $10,000.00) and marked “bonus” in the memo line. However, the judge did fail to address a fourth TBC check to Steve Thomson dated 12/31/01 for $14,000.00, which was also designated as “bonus” in the memo line. Accordingly, we affirm the trial court’s ruling on this issue but amend the court’s total amount by subtracting the additional $14,000.00 bonus check for a total separate property distribution from TBC to Steve Thomson of $644,706.00.

Separate Property Used to Pay Community Obligations

Steve Thomson’s reimbursement claim is predicated on his assertion that he used his separate funds, mostly derived from TBC as shown above, to pay for community expenses and obligations under La.Civ.Code art. 2365. In her fourth assignment of error, Lily Steele contends that the trial court erred in determining that she owes Thomson $288,332.03 in reimbursements because the court erroneously used a “global approach” in calculating the reimbursement claim and erroneously placed the burden of proof on Steele. We find no error in the court’s approach but amend the amount of the reimbursement due Mr. Thomson to $283,782.03 in keeping with our correction of the amount of separate funds in the previous section.

Louisiana Civil Code Article 2365 provides:

If separate property of a spouse has been used to satisfy a community obligation, that spouse, upon termination of the community property regime, is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used. The liability of a spouse who owes reimbursement is limited to the value of his share in the community after deduction of all community obligations.
[ ^Nevertheless, if the community obligation was incurred for the ordinary and customary expenses of the marriage, or for the support, maintenance, and education of children of either spouse in keeping with the economic condition of the community, the spouse is entitled to reimbursement from the other spouse regardless of the value of that spouse’s share of the community.

In this case, the parties stipulated to the accuracy of 91 pages of check register entries on Steve’s two accounts, covering eight years of marriage, from January 1, 1996 through December 31, 2003. The stipulation was to the accuracy of the checks written, the dates, the amounts and the payees,' and to the accuracy of the deposit dates and amounts, although Lily would not stipulate to the source of all deposits. In addition to the check register entries, the record contains voluminous exhibits containing articles of incorporation, copies of deposit slips, deposit details, distribution details from the various companies, and cancelled checks.

The deposits totaled well over $2,600,000.00 dollars for the eight-year period. Except for a small balance divided evenly between the parties as a result of the partition, the remainder was spent during the marriage. The trial court found that the funds deposited were used to pay both community and separate obligations during the marriage, that Steve had deposited $658,706.00 (which we corrected to $644,706.00) of his separate funds from TBC, and had spent $67,632.02 for the benefit of his separate property. In his written reasons, the trial judge cited La.Civ.Code art. 2361 which provides: “Except as provided in Article 2363, all obligations incurred by a spouse during the existence of a community property regime are presumed to be community obligations.” Accordingly, the trial court found that Steve Thomson was entitled to the presumption of Article 2361 that the money in his |uaccounts, except for the $67,632.02, was spent on community obligations, and that the burden was on Steele to overcome the presumption, which she failed to do.

The court cited Dupree v. Dupree, 41,572 (La.App. 2 Cir. 12/20/06), 948 So.2d 254, where the second circuit concluded that a spouse depositing $284,008.32 in separate funds was entitled to the legal presumption of Article 2361 that the funds were used to satisfy community obligations, and the other spouse had the burden of proving that the expenditures were not for the common interest of the spouses. We disagree with Steele’s assertion that the use of the deposits constitutes an improper “global approach,” particularly given the detail in the business records and exhibits in this case.

Moreover, Steele stipulated to the accuracy of the checks written on the check registers, the large majority of which reflect the normal and usual bill payments and expenses that are associated with running a household and several businesses. We recognize that Steele is asserting the general and doctrinal burden of proof in the cases interpreting La.Civ.Code art. 2365. Those cases hold that the burden of proof is on the party claiming reimbursement to show that separate funds existed and were used to satisfy the community obligation. Ward v. Ward, 32,617 (La.App. 2 Cir. 12/10/99), 748 So.2d 619. We also note that the presumption of La.Civ. Code art. 2361 is statutory. It is of no moment in the present ease because both burdens have been met. Steve Thomson proved that separate funds existed in the account because he provided distribution records from the companies at issue, along with deposit slips, deposit details and copies of the checks made out to him for the distributions, and he provided 91 pages of check and deposit register entries, which collectively corroborated his testimony as to which deposits were from his separate companies and which deposits were from community companies.

| alinee it has been shown that expenses and obligations arose during the marriage, the statutory presumption that the obligations and expenses are community obligations may be rebutted only through presentation of facts proving the obligation to be a separate obligation. See Sims v. Sims, 28,470 (La.App. 2 Cir. 6/26/96), 677 So.2d 663. Obligations incurred by a spouse during the existence of a community property regime are presumed to be community obligations with few exceptions, but the presumption is re-buttable upon proof by clear and convincing evidence that the debt was not incurred for the benefit of the community. In re Succession of Moss, 00-62 (La.App. 3 Cir. 6/21/00), 769 So.2d 614, writs denied, 00-2834 (La.12/8/00), 776 So.2d 462, 06-2861 (La.2/2/07), 948 So.2d 1084. Steele provided no such evidence in this case.

In the alternative, Steele argues that the trial court found that $180,000.00 of the money in Thomson’s accounts was used to buy large amounts of prescription pain medication illegally for both parties, and that because an obligation cannot exist without a lawful cause under La.Civ.Code art.1966, the illegal drug expenditure cannot form the basis of a reimbursement claim. Steele muddies the waters here. The trial court did not reimburse Steve Thomson for money spent on drugs. More specifically, the trial court determined that Steve wrote $220,546.74 of the checks to “cash” and that some of the cash was given to Lily Steele to buy the drugs for both of them. In reviewing the record, we also found that Steve wrote checks to Lily designated “personal miscellaneous” in an almost equal amount. Therefore, it is reasonable, and in fact necessary, to believe that the money for drug purchases of $180,000.00 had to come out of the $440,000.00 in checks to “cash” and to Lily and had nothing to do with the reimbursement of $283,782.03 that Steve is seeking from his deposits of over $2.6 million. Clearly, most of the funds deposited |1Bwere community funds, and most of the checks written were for community expenses, none of which are reimbursable.

Steve is not seeking reimbursement for drug purchases. He is seeking reimbursement for a relatively small amount of separate funds used to pay part of a large amount of community obligations. Steve’s reimbursement claim is based upon the $644,706.00 from TBC and the following distributions determined by the trial court to be Steve’s separate income: Harding Street Rentals, $19,800.00; O’Brien Operations, $4,159.93; Hibernia Stock, $58,921.82. Therefore, Steve’s separate income totaled $727,587.75 (corrected from the trial court’s figure of $741,587.75). The trial court deducted $67,632.02 for checks written for the benefit of Steve’s separate properties, then deducted a thirty-five percent tax liability, and finally divided the figure by two for the one half reimbursement of separate funds used for the benefit of community property under Article 2365.

Using the same formula, we corrected the court’s resulting figure from $219,035.61 to $214,485.61. The trial court then added Steve’s remaining reimbursement claims for his use of separate funds to benefit the following community interests: a stipulated reimbursement of $50,551.00 used as a down payment on the community home; $3,250.00 for the benefit of Hugh Wallis Condominiums, L.L.C.; $5,642.92 for the benefit of Berard, L.L.C.; and $9,852.50 for community taxes. Thus the trial court calculated a total reimbursement claim of $288,332.03, which we corrected to $283,782.03, Accordingly, we amend the reimbursement amount in favor of Steve Thomson to $283,782.03 and otherwise affirm the trial court’s judgment on the reimbursement issue.

|17Steve Thomson’s Assignment of Error

Finally, in answering the appeal of Lily Steele, Stephen Thomson asserts one assignment of error against the trial court. Thomson contends that the trial court erroneously denied him reimbursement for expending his separate funds from two of his separate companies for the benefit of the community, and that he is entitled to reimbursement of one-half of the amount expended (less 35% taxes paid on funds) pursuant to La.Civ.Code art. 2365. Specifically, he contends that the trial court erred in denying his reimbursement claims for rental income from Thomson Brothers Investments, L.L.C. (TBI — income from two rental houses, $39,000.00), and for the return on a passive investment in Park Esplanade Limited Partnership (PE — proceeds from the sale of an apartment complex in New Orleans, $114,998.00). Thomson acquired an interest in both of these companies prior to his marriage. Therefore, they are both part of his separate estate.

Pursuant to the matrimonial agreement, which we affirmed as a valid agreement, any fruits or income derived from these separate properties during the marriage would be considered preserved as separate. However, citing Ross v. Ross, 02-2984 (La.10/21/03), 857 So.2d 384, the trial court articulated its duty to determine whether the incomes from Thomson’s separate properties were in fact “civil fruits,” preserved as separate, or funds resulting from Thomson’s effort, skill, or industry, which would render them community property, in spite of the matrimonial agreement, as explained more specifically below.

In Ross, the Louisiana Supreme Court held that the burden was upon the former husband, an independent insurance agent with State Farm, to prove that his insurance renewal commissions received during the marriage were not community property, pursuant to the presumption of La.Civ. Code art. 2340: “Things 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.” Reversing the First Circuit Court of Appeal, the Supreme Court in Ross held that the renewal commissions were the result of the husband’s labor, skill, or industry and thus were community property, in spite of the husband’s declaration of paraphernality reserving the fruits of his paraphernal and separate property.

During a lengthy analysis, the Ross court expressed the difficulties of the courts in determining whether a spouse’s property should be classified as earnings or fruits. The court quoted Spaht and Hargrave, Louisiana Civ. Law Treatise, Matrimonial Regimes, § 3.2 at p. 47 (1997), which states, “Property acquired by the effort, skill or industry of a spouse is community, and there is no mechanism provided for making it separate.” Id. at § 3.8, p. 64. Ultimately, the court found that the majority of Mr. Ross’s income from his insurance company came from the renewal of policies, and that he provided significant services to his existing policyholders to keep their business, including entertainment, advertising, newsletters, explaining claims, accident reports, returning phone calls, answering questions, sending birthday and Christmas cards, and general “schmoozing.” Ross, 857 So.2d at 397. The court stated that its holding was consistent with settled law and in accord with the notion that “to the extent that labor is producing some benefit, the community ought to share in the profit of that labor.” Id. at 398.

In this case, the trial court fully and comprehensively discussed the Ross case and the authorities cited by the Supreme Court in Ross. The trial court determined that Steve Thomson did not overcome Article 2340’s presumption that income is community because the courts in Louisiana have recognized that substantial 11samounts of effort, labor and industry are required to manage and operate rental properties. Accordingly, the trial court designated the funds from TBI and PE as community earnings which are not subject to a reimbursement claim. We note that the trial court analyzed the fruits of eight separate properties of Mr. Thomson and determined that the income from five of them constituted Thomson’s separate property, one of which was a legitimate passive rental income profit from a property that the brothers rented from their father and sublet for more than they paid. Thomson’s contentions are without merit.

Equalizing Payment

We turn now to the effect that the correction of Steve’s reimbursement claim has on the equalizing payment. Lily Steele was awarded all of the sale proceeds from the house, and Steve Thomson was awarded the limited liability companies, worth over three times as much, because of his expertise in real estate. The court correctly calculated an equalizing payment from Steve to Lily of $365,242.95. Lily had a reimbursement claim of $100,169.30 (uncontested on appeal), and Steve has a larger reimbursement claim of $283,782.03. Therefore, the net reimbursement that Lily owes Steve is $183,612.73. This amount is subtracted from the equalizing payment ($365,242.95-$183,612.73), and Steve now owes Lily $181,630.22 (corrected upward from the trial court’s figure of $177,080.22).

IV.

CONCLUSION

Based upon the foregoing, we amend the separate property distribution amount from Thomson Brothers Construction to Steve Thomson by adjusting it downward from $658,706.00 to $644,706.00, and we amend the total reimbursement | gnclaim of Steve Thomson by adjusting it downward from $288,332.03 to $283,782.03. We further amend the equalizing payment that Steve Thomson owes Lily Steele by adjusting it upward from $177,080.22 to $181,630.22. We affirm the trial court in all other respects.

AMENDED AND, AS AMENDED, AFFIRMED.

COOKS, J., Dissents in Part and Assigns Written Reasons.

COOKS, J.,

dissenting in part.

|,I find merit in Mrs. Thomson argument that a portion of Mr. Thomson’s reimbursement claim from the community stems from the illegal purchase of large amounts of prescription pain medication. The record shows that approximately 2.6 million dollars in deposits were made into Mr. Thomson’s checking account, of which we have determined $644,706.00 of these deposits were from his separate income. Based on the husband’s own testimony, it was established he and his wife used $180,000.00 in cash to illegally purchase drugs. The record also reveals Mr. Thomson wrote checks to cash drawn on his account in an amount over $200,000.00 and checks to his wife from the same account in a similar amount. It is from these checks that the cash to buy the illegal drugs was obtained.

The trial court and the majority find no merit in the wife’s argument that this $180,000.00 used for the purchase of illegal drugs cannot be included in a valid reimbursement claim. The trial court’s reasoning for not reducing the husband’s reimbursement claim for this amount was twofold: (1) that is was impossible to determine “whether separate or community funds were used to purchase the illegal drugs”; and (2) “since both parties equally used [the drugs], the Court will not use the purchase of illegal drugs as justification to deny Mr. Thomson reimbursement for separate funds used for the benefit of the community.” This reasoning is flawed. First, although we cannot determine what portion of the illegal drugs purchased came |2from separate or community funds, we do know that the money used to buy the drugs came from Mr. Thomson’s checking account. Approximately one-quarter (]4) of all funds deposited into this account, the trial court determined, came from Mr. Thomson’s separate property, for which he now seeks reimbursement. It is simply unreasonable to assume that no portion of the $180,000.00 came from Mr. Thomson’s separate income, and all of it came from the community funds deposited into the account. However, this is what the trial court’s ruling requires us to conclude. It is more reasonable, and in keeping with public policy, to conclude that one-quarter (⅝) of the funds used to acquire the drugs came from Mr. Thomson’s separate income. Correspondingly, this portion of his separate income cannot form part of his reimbursement claim. To do as the trial court and the majority have done is to countenance the reimbursement of monies used to purchase illegal drugs against both statutory law and public policy. Under La.Civ.Code art. 2365 an obligation cannot exist without a lawful cause, and the purchase of illegal drugs cannot be a recognized community obligation. Any funds used to purchase illegal drugs cannot be part of a valid reimbursement claim. Second, the fact that both parties used the drugs in an equal amount is irrelevant and does not provide legal justification for ignoring the clear mandate found in La.Civ.Code art. 2365.

The majority apparently accepts Mr. Thomson’s argument that he was “not seeking reimbursement for drug purchases ... [but rather] for a relatively small amount of separate funds used to pay part of a large amount of community obligations.” This reasoning, much as the trial court’s, asks us to unrealistically assume that no part of the $180,000.00 used to purchase illegal drugs came from the separate funds deposited by Mr. Thomson. For the reasons set forth above, I choose not to do so, and respectfully dissent from that portion of the majority’s decision.

      . La.Civ.Code art. 2365: "If separate property of a spouse has been used to satisfy a community obligation, that spouse, upon termination of the community properly regime, is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used....”

      . La.Civ.Code art. 2364: "If community property has been used to satisfy a separate obligation of a spouse, the other spouse is entitled to reimbursement upon termination of the community property regime for one-half of the amount or value that the property had at the time it was used.”

      . La.Civ.Code art. 2341: "The separate property of a spouse is his exclusively. It comprises: property acquired by a spouse prior to the establishment of a community property regime; property acquired by a spouse with separate things or with separate and community things when the value of the community things is inconsequential in comparison with the value of the separate things used; property acquired by a spouse by inheritance or donation to him individually; ... and things acquired by a spouse as a result of a voluntary partition of the community during the existence of a community property regime.”

      . While not providing specific argument on the issue, Steele makes a conclusory assertion that the trial court did not value the properties at the time of trial pursuant to La.R.S. 9:2801. We note that the competing appraisals were done at different time frames prior to trial, that the trial court provided an exhaustive analysis comparing the parties’ appraisers and their methodologies for updating or adjusting their appraisals, and that the trial court did not abuse its discretion in making its valuations based upon the evidence presented by the parties, or in choosing one appraiser over the other. See Razzaghe-Ashrafi v. Razzaghe-Ashrafi, 558 So.2d 1368 (La.App. 3 Cir. 1990); Queenan v. Queenan, 492 So.2d 902 (La.App. 3 Cir.), writ denied, 496 So.2d 1045 (La.1986); Ellington v. Ellington, 36,943 (La.App. 2 Cir. 3/18/03), 842 So.2d 1160, writ denied, 03-1092 (La.6/27/03), 847 So.2d 1269; Major v. Major, 94-1885 (La.App. 4 Cir. 4/3/96), 671 So.2d 571; Roberts v. Roberts, 542 So.2d 517 (La.App. 5 Cir.), review denied, 547 So.2d 1317 (La.1989).

      . La.Civ.Code art. 2338: “The community properly comprises: property acquired during the existence of the legal regime through the effort, skill, or industry of either spouse; property acquired with community things or with community and separate things, unless classified as separate property under Article 2341; property donated to the spouses jointly; natural and civil fruits of community property; damages awarded for loss or injury to a thing belonging to the community; and all other property not classified by law as separate property.”

      . Louisiana Civil Code Article 2363 defines separate obligations generally as those incurred before marriage, or during marriage if not for the common interest of the spouses or for the other spouse.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    Katie Chisley JONES, et al., Plaintiff-Appellants v. Keith J. GAINES and U.S. Agencies Casualty Insurance Co., Inc., Defendant-Appellees.
    No. 43,049-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2008.

      Anthony J. Bruscato, Monroe, for Appellants.
    Louisiana Department of Justice by Judith M. Williams, for Appellees.
    Before CARAWAY, MOORE and LOLLEY, JJ.
   MOORE, J.

|, This is an appeal of a partial final judgment under La. C.C.P. art. 1915. We previously affirmed the trial court’s grant of a motion for summary judgment for the State of Louisiana, Department of Public Safety/Office of Motor Vehicles (“DPS”) and a peremptory exception of no cause of action in favor of the State of Louisiana— Health Care Science Center at Monroe d/b/a E.A. Conway Hospital (“E.A. Conway”) and the State of Louisiana, Department of Health and Hospitals (“DHH”), reported in Jones v. Gaines, 41,890 (La.App. 2 Cir. 02/28/07), 953 So.2d 922. However, we remanded to allow the plaintiff an opportunity to amend its pleadings to state a cause of action. Plaintiff filed a Fifth Supplemental and Amending Petition and an Amended Fifth Supplemental and Amending Petition. Defendants answered and moved for summary judgment, which the trial court subsequently granted. Plaintiff filed this appeal. For the reasons stated herein, we affirm.

Facts

We adopt by reference the facts we set out in our earlier opinion cited above. The plaintiffs’ amended petition after remand alleges additional factual details regarding the alleged fault of the defendants, E.A. Conway and DHH. In summary form, the plaintiffs allege that:

Keith Gaines was diagnosed with schizophrenia ten years prior to the accident in this case, and he has lived with his parents throughout this period. The nature of Gaines’ illness is that he can lead a relatively normal Clife so long as he takes his prescribed medications and avoids alcohol and illegal drugs. If he uses alcohol or illegal drugs, even while on medication, he will lapse into uncontrolled schizophrenia. The result is that Gaines becomes delusional, violent, and is a danger to himself and others, such that he must be hospitalized for his own safety and the safety of others. When Gaines lapses into uncontrolled schizophrenia, he is not able to operate a motor vehicle safely because his judgment and perceptions are impaired.

Gaines has a history of being non-compliant in taking his anti-psychotic medications as well as a history of drug and alcohol abuse. Prior to the accident on April 20, 2001, Gaines often lapsed into uncontrolled schizophrenia and he was placed into the defendant hospital during these lapses. During the twelve-month period prior to April 20, 2001, Gaines was hospitalized in the custody of the defendants on five separate occasions. His last release from the defendant hospital was on April 18, 2001.

Gaines was repeatedly determined by coroner’s certificate to be a danger to himself and others. Additionally, the medical records reveal that Gaines frequently suffered from delusions, schizophrenia, violent behavior, threats, chronic alcohol and drug abuse, and was non-compliant with the prescribed anti-psychotic drug regimen. Based on these records, plaintiffs allege that Dr. Agarwal and all administrators and medical staff had actual or constructive knowledge of Gaines’ condition and dangerous propensities.

Plaintiffs contend that Gaines’ pattern of behavior is representative of a small group of non-compliant schizophrenics whose condition is obvious and highly predictable to any person of ordinary common sense with acknowledge of schizophrenia. They allege that the defendant routinely treats these people by hospitalizing them long enough to stabilize them and then releases them back into the community where they will, predictably, relapse and become a danger to themselves and others. Hence, plaintiffs contend that the defendants have taken no precautionary steps to ensure the safe release of these patients, including not returning patient belongings that constitute dangerous instrumentalities, not establishing a procedure for notifying the DPS of their identity and mental instability that may make it dangerous for them to operate a motor vehicle, and having minimal or no procedures for coordinating a patient’s release with the patient’s family or caregivers, namely to ensure that any dangerous instrumentality is returned to the patient’s family instead of the patient.

Plaintiffs contend that Gaines’ illness makes him an unsafe driver, but he was able to purchase, register, and own an automobile because the defendants never reported Gaines’ condition to DPS.

In this instance, plaintiffs allege that when Gaines checked into the hospital in the beginning of April of 2001, he relinquished custody of certain personal items to the defendants, including a set of car keys. Plaintiffs contend that a car is a dangerous instrumentality.

Although Gaines entered the hospital on his own volition, in order to leave, he was required to give 72 hours or three days notice to obtain a release. On April 15, Gaines gave his three-day notice. According to established procedure, medical . personnel then evaluated him over the next three days-to determine whether to release him or obtain a coroner’s | certificate to keep him hospitalized indefinitely. At this time, Gaines’ parents were attending a funeral out of town. Also, Gaines’ physician, Dr. Rita Agarwal, changed Gaines’ anti-psychotic medication, and, according to plaintiffs’ allegations, it was not' clear how Gaines would respond to the new medication. Dr. Agarwal approved Gaines’ release and Gaines was discharged on April 19, 2001, with instructions to return for an appointment on April 23, 2001.

Plaintiffs contend that Gaines’ parents were aware of his dangerous propensities and acted as his caregiver and supervisor. Because they were aware that Gaines might be released while they were out of town, they concealed all car keys in the family home to ensure that Gaines would not have unsupervised access to a vehicle while in an uncontrolled schizophrenic state. They also made arrangements for Gaines’ cousin to pick him up from the hospital instead of driving himself home.

When Gaines checked out of the hospital, his car keys were returned to him along with his other personal belongings. Plaintiffs contend that by returning Gaines’ car keys to him, the defendants placed him in control of a dangerous instrumentality. , ,

Less than 48 hours after his release, Gaines consumed alcohol .and had a relapse. He subsequently drove his vehicle recklessly and at a high speed, ran a red light which caused a collision, killing the victim in this case. •

Plaintiffs allege that the victim’s death was caused by the gross, willful, and wanton neglect of the defendants. The alleged acts and | Bomissions included:

(A) the defendant’s failure to establish any system for managing “revolving-door schizophrenics” by '

(1) establishing a practice or procedure for notifying the DPS of the identity of persons who should be investigated for possible restriction of their driving privileges.
(2) establishing a practice or procedure for removing dangerous instrumentalities from the possession and control of persons with a history of “revolving-door schizophrenia.”
(3) establishing an adequate procedure for consulting with caregivers in planning the release of potentially dangerous individuals.

(B) the premature release of Gaines when he had just been placed on a new medication without coordinating the release with his parents.

(C) by giving Gaines’ car keys to him instead of his cousin, or warning his parents about the situation or taking other steps to secure the keys.

After the plaintiffs amended their petition, E.A. Conway and DHH moved for summary judgment. The matter was taken up and argued, after which the trial court granted the motion and dismissed plaintiffs’ claims against the defendants with prejudice. There were no written reasons issued by the court. Plaintiffs filed the instant appeal.

| ^Discussion

A court of appeal reviews a trial court’s ruling on a motion for summary judgment de novo. Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002; Hargrove v. Goods, 41,817 (La.App. 2 Cir. 2/28/07), 953 So.2d 968.

Summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by law. The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2); Racine v. Moon’s Towing, 2001-2837 (La.05/14/02), 817 So.2d 21. If the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law, then summary judgment shall be rendered. La. C.C.P. art. 966; Patton v. Strogen, 39,829 (La.App. 2 Cir. 8/17/05), 908 So.2d 1282, writ denied, 2005-2397 (La.3/17/06), 925 So.2d 548.

The burden of proof on a motion for summary judgment remains with the mov-ant. La. C.C.P. art. 966(C)(2). However, when the movant will not bear the burden of proof at trial on the matter before the court on the summary judgment motion, the burden does not require the movant to negate all essential elements of the adverse party’s claim, but rather to point out that there is an absence of factual support for one or more elements essential to that claim. La. C.C.P. art. 966(C)(2). If the adverse party then fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact. Id.

|7As provided in La. C.C.P. art. 967(B), the adverse party may not rest on the mere allegations or denials of his pleading in response to a properly made and supported motion for summary judgment; rather, his response, by affidavits or otherwise, must set forth specific facts showing a genuine issue for trial. Otherwise, summary judgment shall be rendered against him, if appropriate. La. C.C.P. art. 967(B).

On appeal, the plaintiffs assigned no errors per se to the trial court’s judgment, but contend that there are four issues raised by their appeal of the judgment:

(1) Was the E.A. Conway psychiatric unit under the sole control of DHH at the time of Mr. Gaines’ hospitalization in April of 2001?

(2) Does E.A. Conway or DHH have any duty to the general public?

(3) Was the duty breached in this case?

(4) Have defendants conclusively established their right to the affirmative defense of immunity under La. R.S. 9:2798.1?

Based on our review of the record, we conclude that the trial court granted the motion for summary judgment on grounds that neither E.A. Conway or DHH, or both, breached a duty owed to the plaintiffs that was a legal cause in the death of the victim in this case. Accordingly, the dispositive questions in our de novo review in this case are whether the defendants owed a general duty to the plaintiffs, and, if so, whether any breach of that duty was the legal cause of the harm suffered.

| fDid E.A. Conway or DHH owe a general duty to the plaintiffs?

The substance of plaintiffs’ argument that it has stated a cause of action against the hospital and DHH in this case is that their claim lies in negligence and'it is not based on violation of La. R.S. 9:2800.2, which states that psychologists and psychiatrists and the like shall not be liable for a breach of confidentiality for warning “a clearly identified victim or victims” of a significant and “specific threat of physical violence.” Id. In other words, the plaintiffs allege that their amended petition is based not on the breach of a statutory duty but rather a legal duty, that is, the obligation to conform to the standard of conduct of a reasonable man under like circumstances. Barbarin v. Dudley, 2000-0249 (La.App. 4 Cir. 12/20/00),775 So.2d 657.

We observe that there is a split in the Louisiana circuit courts of appeal regarding whether psychiatrists, psychologists, and the public entities that employ them have any duty to third persons beyond the limited context of La. R.S. 9:2800.2. For example, in Grady v. Riley, 01-1197 (La.App. 5 Cir. 2/26/02), 809 So.2d 567, the Fifth Circuit held that a psychiatrist has a duty to protect third persons only in a limited scenario and affirmed a summary judgment dismissing the psychiatrist, hospital and clinic where the plaintiff alleged the defendants negligently released a patient under medication for bipolar disorder, and who subsequently recklessly operated an automobile and caused a head-on collision causing severe injuries and disability to the plaintiff.

|9In Dunnington v. Silva, M.D., 2004-1788 (La.App. 1 Cir. 9/28/05), 916 So.2d 1166, the First Circuit held that a psychiatrist’s duty to warn or to take reasonable precautions to provide protection from violent behavior arises only under the circumstances specified in La. R.S. 9:2800.2(A) and the “statute is exclusive as to claims by third parties.” Id. at 1171.

The same issue was squarely faced in Sanchez v. State Through Dept. of Health and Human Resources, 506 So.2d 777 (La.App. 1 Cir.1987), where the plaintiff alleged negligence on the part of Conway Memorial Hospital (“Conway”) and DHH for failing to protect the public by not recognizing a patient’s violent propensities and by releasing the patient from the hospital and thereby placing him in a position where he could commit violent acts. The patient, who had a long history of mental illness, entered his parents’ home and killed his sister and her husband three months after his release from Conway. The patient had on different commitment occasions made threats to kill his wife, his parents, the president and the pope and even stated that all teenage girls should die. A PEC was issued in ‘mid-February pursuant to the patient’s wife’s request, but the patient was out of state and could not be found. He subsequently returned him home, where he remained sfeveral days before committing the killings.

The trial court granted the defendants’ exception of no cause of action and motion for summary judgment on grounds that any negligence on the part of the defendants was not a cause in fact of the deaths, and that the duty owed by these defendants to confine the patient did not extend to the possibility that he would shoot the victims. The court of appeal affirmed, | mholding that the duty of Conway to care for and treat the patient did not include within the ambit of its protection the risk that after being released he would, through his own unanticipated and independent actions, injure a third person.

On the other hand, Davis v. Puryear, 95-1637 (La.App. 4 Cir. 5/1/96), 673 So.2d 1298, a panel from the Fourth Circuit held that a state mental health institution and its physician employees owe a general duty to the public to exercise reasonable care under certain circumstances to guard against harm to third persons and this duty extends beyond the duty to warn or a duty to identified potential victims. In Davis, the victim, Valerie Davis, was raped and murdered by David Puryear two days after he escaped from the Southeast Louisiana Hospital (SELH), a state mental institution. Puryear had a years-long history of mental illness that included violence to himself and others, and on several previous occasions, he had been admitted to the East Louisiana Hospital (“ELH”) for his severe mental infirmities.

The trial court found that SELH was liable because it allowed a psychotic patient to escape. SELH and the other defendants appealed, alleging that they did not breach any standard of care. The Fourth Circuit affirmed, holding that SELH was negligent because it deviated from the standard of care in failing to obtain Puryear’s medical records from ELH, which would have revealed that Pur-year had a history of violence and escapes, which thereby mandated rigorous anti-elopement measures. Consequently, the court held that the hospital’s failure to take anti-elopement measures was also a breach of the standard of care.

|nThe Davis decision, supra, was subsequently criticized in a law review casenote for imposing strict liability on mental healthcare facilities when an injury follows a patient’s escape even when there is no causal relationship between the negligence and the escape:

Davis is significant because the Fourth Circuit has extended the duty of the state mental health system beyond the bounds of any case in Louisiana jurisprudence. The mental health facility now has a duty to use whatever reasonable measure necessary to protect the public from being harmed by a potentially dangerous mental health patient. The extension of this duty is beyond the limits of the legislative intent of the law, and the court basically imposes strict liability on the facility for the actions of escaped patients and, perhaps, even patients released from care.
The Fourth Circuit essentially expands the underlying policy of health care facilities beyond what was intended by the mental health statute.... The Louisiana legislature defined the policy of the Mental Health Law indicating that the facility is to provide care to the mental patient in the least restrictive manner possible and protect the patient’s rights. This policy statement establishes that the interest of the state is to protect and treat the patient, not protect the public. There is an interest in detaining dangerous persons, but the statute indicates that the facility has a duty to the mentally ill to protect their rights and liberties. Though the rights of the patient and the protection of the public present a competing interest in some cases, the mental health facility’s duty should be first to the patient to ensure proper treatment and proper confinement periods. Because the patient in many circumstances cannot speak for himself and surrenders himself to the mental health facility and his care provider, the facility is often in the unique position of providing the' only protection available to the patient. If the facility is more concerned with public protection or liability, treatment of the mentally ill becomes only a secondary interest, contrary to the stated policy of the law. The Davis result deviates from the legislative policy of protecting the liberty interests of the patient and mandates that mental health facilities be more restrictive in confining all patients, not just those who are dangerous, to avoid liability. (Footnotes omitted).
| ^Davis also brings to the forefront a split in the circuit courts regarding the analysis of the duties of mental health facilities. The First Circuit, while acknowledging the language in Frank regarding the purpose of incarceration, still requires a strong causal relationship between the injury and the escape to determine the liability of either the penal or mental institution. In contrast, the Fourth Circuit in Davis held that the purpose of the two institutions is so vastly different that the analysis in prison cases must be dismissed as “totally inapplicable” to mental health facilities. Because no causal relationship between the negligence and the escape is required, the Fourth Circuit’s analysis imposes strict liability on the mental health facility for injury which follows a patient escape. Accordingly, if an escape occurs and someone is injured by the escapee, the facility is liable. Conversely, the First Circuit prohibits recovery absent a strong causal relationship between escape and -injury, and expressly rejects the application of strict liability in a prisoner/patient escape.

In the instant case, unlike Davis, Gaines was released from E.A. Conway pursuant to the statutory procedures in La. R.S. 28:52.2. Additionally, Puryear had a history of violence and escapes evidenced in his medical records. The plaintiffs in this instance allege, however, that E.A. Conway and DHH were negligent by failing to establish any system for managing “revolving-door schizophrenics” by not (1) establishing a practice or procedure for notifying the DPS of the identity of persons who should be investigated for possible restriction of their driving privileges; (2) establishing a practice or procedure for removing dangerous instrumen-talities |13from the possession and control of persons with a history of “revolving-door schizophrenia;” and, (3) establishing an adequate procedure for consulting with caregivers in planning the release of potentially dangerous individuals. Also, the plaintiffs allege that the hospital breached a duty to them by the premature release of Gaines when he had just been placed on a new medication without coordinating the release with his parents and by giving Gaines’ car keys to him instead of his cousin, or warning his parents about the situation or taking other steps to secure the keys.

In light of the foregoing analysis of the case law, we conclude that La. R.S. 28:52.2 and La. R.S. 9:2800.2 establish the conditions and obligations for the release of patients like Gaines and the duty of health care providers of these patients to warn “clearly identified victim or victims” of a significant and “specific threat of physical violence.” Clearly, the facts of this case are distinguishable from the duties contemplated in La. R.S. 9:2800.2 inasmuch as Gaines’ threats of physical violence referred to by plaintiffs did not identify the victims in this case. More importantly, the ultimate issue in this case does not concern threats of violence, but whether the hospital had full knowledge that Gaines would become, after his release, incompetent to drive an automobile. The alleged omissions in this case do not, in our view, constitute a breach of the standard of care, as found in Davis. We also conclude that were we to impose the duties suggested by the plaintiffs, we would violate the clear policy of La. R.S. 28:52.2 and other provisions of the | uMental Health Law. The policy expressed in this law establishes that the interest of the state is to protect and treat the patient, not protect the public. While there is an interest in detaining dangerous persons, the statute indicates that the facility has a duty to the mentally ill to protect their rights and liberties. Hence, although the rights of the patient and the protection of the public present a competing interest in some cases, the mental health facility’s duty should be first to the patient to ensure proper treatment and proper confinement periods. Based on our review of the record, we cannot conclude, based solely on the fact of Gaines’ history of periodic non-compliance with his medication regimen and his being involved in two prior accidents of unknown circumstances, that the hospital and DHH had a duty to establish the measures suggested by the plaintiffs.

We turn now to the questions of whether the hospital and DHH breached a duty to the plaintiffs and whether the breach of this duty was the cause of the plaintiffs’ harm. Plaintiffs allege that the hospital breached a duty to them by the premature release of Gaines when he had just been placed on a new medication without coordinating the release with his parents and it breached a duty by giving Gaines’ car keys to him instead of his cousin, or warning his parents about the situation or taking other steps to secure the keys. They contend that Gaines’ behavior was predictable and foreseeable.

We think that the issue here is demonstrably a question of whether the hospital’s release of Gaines with his car keys was a legal cause of the injuries suffered by the plaintiffs. For the following reasons, we hold that Gaines’ release with his car keys was not a legal cause of the plaintiffs’ harm.

|1RAutomobile keys and automobiles do not constitute “dangerous instru-mentalities” per se. An automobile may become a dangerous instrumentality where the owner permits it to be driven in a defective condition that renders it uncontrollable when operated or where he allows it to be operated by incompetent persons who do not know how to drive, by insane persons or by persons who are similarly incompetent by reason of temporary or permanent defects in their mental or physical faculties, and in such cases where it appears that the owner has entrusted the automobile to an incompetent person with full knowledge of the borrower’s inability, the owner may render himself responsible to another who is injured by carelessness of the borrower. Midkiff v. Watkins, 52 So.2d 573 (La.App. 1 Cir.1951). We view the hospital’s act of giving Gaines the keys to his car as analogous to. those cases in which a vehicle owner leaves his keys in the ignition of a car and subsequently a joy rider takes the vehicle, drives recklessly and causes harm to a third party. Against the allegation that leaving the keys in an unattended vehicle creates an unreasonably dangerous condition, our Supreme Court has stated that “it is well-settled under Louisiana jurisprudence that the mere act of a motorist in leaving keys in a car does not create liability on the part of the motorist where a thief steals the car and injures a third party.” Racine v. Moon’s Towing, 2001-2837 (La.5/14/02), 817 So.2d 21, 25. The court said that the owner of a vehicle who leaves the keys in the ignition owes no duty to the public at large against the risk of a thief s negligent operation of the automobile. Id. at 25, citing Midkiff v. Watkins, supra. In Racine, supra, the court concluded that the fatal | ^injury to plaintiffs’ son occurred not from the owner’s act of leaving the keys in the truck, but from the victim’s brother’s deliberate act of breaking into the locked truck and starting the engine.

In Oaks v. Dupuy, 32,070 (La.App. 2 Cir. 8/18/99), 740 So.2d 263, writ not considered, 1999-2729 (La.11/24/99), 750 So.2d 993, a negligent entrustment case involving a drunk driver, a panel from this court reversed a summary judgment in favor of the defendant dismissing the claim and holding that there remained a material issue of fact as to the owner’s knowledge of his son’s competency as a driver. Regarding the duty of the owner of the vehicle, the court stated:

Under the negligent entrustment theory, the lender of a vehicle is not responsible. for the negligence of the borrower unless he knew or should have known that the borrower was physically or mentally incompetent to drive; if the lender knew or should have known of the borrower’s incompetency then he is responsible for the harm resulting from the incompetent operation of the vehicle. (Citations omitted). We believe a reasonably prudent person has a clear duty to recognize the manifest danger of making a long-term, open-ended loan of a vehicle to someone they know or should know is an habitual abuser of alcohol and is prone to drive a vehicle while under the influence of alcohol. (Citation omitted). A prudent person should recognize that under these circumstances it is highly likely that serious injuries or death will foreseeably result.

Although the owner’s son had apparently been using the vehicle for several months without incident, there was substantial evidence submitted by the plaintiffs that the son had. a strong record of alcohol abuse, drunk driving and a reputation in the community for that behavior. The plaintiffs submitted affidavits from the victim, her brother, a friend, and the insurance salesman l17who sold the owner the insurance policy on the vehicle, each of which attested to the son’s “tendency to drink and be under the influence of alcohol and that he had a reputation in the community of Haughton as an habitual drinker.” Id. at 266. The son testified that his driver’s license had been revoked twice, once due to the accident at issue and once due to a DWI. He was in a fatal boating accident in which three of the passengers were killed when a boat ran over the boat he was operating; he caused two other accidents, and he admitted to leaving the scene of one of them. He was uninsured in the instant accident since his own truck had been repossessed and his father was lending him the insured Blazer. At the time of the accident he was drinking beer on a daily basis, in varying amounts up to a six-pack a day.

We observe that the panel in Oaks was particularly impressed with the fact that the accident occurred in “a small community where everybody knows everybody else,” the driver’s “reputation for drinking and driving, the close relationship between [the son] and his father, and the fact that the deceased father cannot now testify.” Id. at 267. It concluded that a judicial determination of the father’s knowledge of his son’s drinking behavior is essential to the resolution of the case.

Oaks, supra and most negligent entrustment cases involving lending an automobile are only marginally analogous to the instant case because the hospital did not own the vehicle and it was obligated to return Gaines’ personal belongings upon his release, including the car keys to the vehicle which the hospital did not own, nor did it control. Assuming, for the sake of |isargument, that the hospital could have kept Gaines’ keys from him, there is clearly not enough evidence that the hospital knew or should have known that Gaines would at some point in the future become non-compliant with his medications and become psychotic or intoxicated or both and drive an automobile recklessly. Although Gaines did have a history of not taking his medications — a fact which the hospital was aware — Gaines’ driving history, in which plaintiffs allege he was involved in two previous accidents, is not really remarkable in and of itself.

As observed by the Supreme Court in Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972):

Foreseeability is not always a reliable guide, and certainly it is not the only criterion for determining whether there is a duty-risk relationship. Just because a risk may foreseeably arise by reason of conduct, it is not necessarily within the scope of the duty owed because of that conduct. (Footnote omitted). Neither are all risks excluded from the scope of duty simply because they are unforeseeable. (Footnote omitted). The ease of association of the injury with the rule relied upon, however, is always a proper inquiry.

A more instructive case is Todd v. State Through Dept. of Social Services, Office of Community Services, 699 So.2d 35, 96-3090 (La.9/9/97). Sheila Todd (Todd) brought an action, individually and on behalf of her son, Joshua Todd (Joshua), for his wrongful death after 11-year old Joshua committed suicide by hanging. The plaintiff alleged that Cathy LaBauve (La-Bauve), a caseworker-investigator for the Office of Community Services through the Department of Social Services for the State of Louisiana (OCS), negligently removed Joshua from his mother’s custody and failed to properly secure his safety, causing Joshua’s death. The trial court found OCS and | inLaBauve jointly, severally, and solidarily liable for the wrongful death of Joshua. The Fifth Circuit affirmed. The Supreme Court granted a writ of certiorari and reversed the judgment “finding] no legal cause between OCS’s alleged negligence and Joshua’s death.” Id. at 35. The case is both analogous and instructive regarding legal cause:

“Cause” in legal cause demands an inquiry into whether a legal standard of care exists and requires delving into policies for and against extending the asserted legal standard of care to protect the particular plaintiff against the particular harm. (Citations omitted). Moreover, whereas the question of cause-in-fact involves a factual determination, the determination of legal cause inyolves a purely legal question. (Citation omitted).
Every negligence case must be decided on its own facts and circumstances. Roberts v. Benoit, 605 So.2d 1032 (La. 1991). In some instances a risk may not be found within the scope of a duty where the circumstances of that particular injury to that plaintiff could not be reasonably foreseen or anticipated, because there was no ease of association between that risk and the legal duty. See Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972).
We are mindful that foreseeability, as the determining test, is neither always reliable nor the only criterion for comparing the relationship between a duty and a risk. Some risks that arise because of a defendant’s conduct are not within the scope of the duty owed to a particular plaintiff simply because they are unforeseeable. The ease of association of the injury with the rule of conduct that is urged, however, is the proper inquiry. Hill, supra. Nevertheless, the extent of protection owed a particular plaintiff is determined on a case-to-case basis to avoid making a defendant an insurer of all persons against all harms. (Citation omitted).
The legal issue in White v. White, 479 So.2d 588 (La.App. 1 Cir.1985), as well as in Frank v. Pitre, 353 So.2d 1293 (La.1977), is very similar to the issue at hand. The plaintiff in White sued the state after his child of eighteen months was struck and killed by an automobile in front of the residence of the child’s mother. Approximately two weeks before the fatal accident, plaintiff had reported to the Department of Health and Human Resources (DHHR) that the mother was neglecting the | anchild, and asked DHHR personnel to intervene to protect his child until the custody hearing. The court held that the mere failure to investigate did not give rise to a cause of action against the state for the wrongful death of the child. It further stated that the state did not have custody of the child, and that the negligence of the mother, the car owner, and the driver could not be imputed to the state. The White court analogized the issues involved to those of Frank,'in which the court refused recovery against a sheriff to a policeman who had been shot by a prisoner on a pass. This Court stated:
It is not enough to say that if [the prisoner] had not been released under the sheriffs policy of weekend passes, the tragedy would not have occurred. If [his] friend had not given him a ride to town the shooting would not have happened. There must be something more; there must be a closer connection between the act of the defendant and the injury of the plaintiff.

Frank v. Pitre, 353 So.2d at 1296.

The Supreme Court determined that in order for Todd to recover, she had to show that LaBauve and OCS breached their duty to investigate, and thereby caused Joshua’s death. White, supra. That is, there must be a proximate relation between the alleged negligence and the injury.

The facts in this case do not show a proximate relation between the release of Gaines with his car keys and his subsequent decision some 48 hours later to intoxicate himself, get in his car, drive recklessly and cause the death of the victim in this case. When Gaines was released, he was compliant with his medication and he was not intoxicated. Under La. R.S. 28:52, after Gaines gave his 72-hour notice, the hospital was required to release Gaines unless it was deemed appropriate to obtain a physician’s emergency certificate. Under the facts of this case, those circumstances did not exist.

121 Stated differently, the release of Gaines and giving him his car keys were too remote in the chain of causation in this case, and thus these actions did not constitute a substantial factor in the harm that resulted from Gaines’ reckless operation of the automobile two days later. Durapau v. Jenkins, 95-120 (La.App. 5 Cir. 5/30/95), 656 So.2d 1067. In Durapau, the First Circuit affirmed a summary judgment dismissing the plaintiffs tort action against a psychiatric hospital where the plaintiff alleged that the hospital negligently discharged from its care a dangerous patient who subsequently stabbed the plaintiff after the patient was released. The patient, Jenkins, had been treated for paranoid schizophrenia for a number of years by at least four mental institutions and had been involuntarily committed to the defendant, DePaul Hospital, by coroner’s certificates three times earlier in the same year of the stabbing incident. Jenkins’ mother obtained the commitment orders which also repeated her complaint that Jenkins was belligerent, suicidal and homicidal. After he was brought to DePaul Hospital, the defendant consented to voluntary commitment and treatment. He was treated with medications and his symptoms dissipated. According to the hospital representative, so long as Jenkins remained on his medication he was not a danger to himself or others, and therefore there would be no need for confinement. Jenkins’ treating psychiatrist, Dr. Kailas, authorized Jenkins’ discharge. It was undisputed that the hospital released Jenkins because the treating psychiatrist approved it.

The First Circuit concluded that in order for the plaintiff to maintain an action against the hospital for negligent release, there would need to have been allegations or evidence that the hospital acted contrary to the ^psychiatrist's recommendation or permitted Jenkins to leave without proper authorization or that the hospital was negligent in some way for following the psychiatrist’s recommendation. Absent this, the hospital breached no duty owed to the plaintiff to protect him from the injury he suffered at the hands of Jenkins.

In this case, we conclude that the hospital breached no general duty to the plaintiff or the public when the nurse at the hospital returned Gaines’ car keys to him upon his release. Nor do we find that the hospital or DHH breached a duty because it did not have a policy regarding the return of ear keys. We do not find that the car keys constituted “a dangerous instrumentality” where Gaines was not intoxicated or in a psychotic state and was taking his medications when released from the hospital.

Because we conclude that the defendants breached no general or statutory duty owed to the plaintiffs in this case, we pretermit determination whether defendants have met the necessary conditions to raise the affirmative defense of immunity under La. R.S. 9:2798.1 and the issue of whether E.A. Conway was under the sole control of DHH.

Conclusion

For these reasons, we affirm the summary judgment dismissing the plaintiffs claim against E.A. Conway and DHH with prejudice. Plaintiffs are assessed the costs of the appeal.

AFFIRMED.

      . In plaintiffs’ Amended Fifth Supplemental and Amending Petition discussed herein, plaintiffs changed this defendant’s name to State of Louisiana, through the Board of Supervisors of Louisiana State University Agricultural and Mechanical College ("E.A. Conway”), but state it has no legal consequence.

      . Carl E. Helmers, III. Davis v. Puryear: A New Direction for the Liability of Mental Health Facilities in Louisiana, 42 Loy. L.Rev. 629 (Fall 1996).

      . § 52.2. Formal voluntary admission.
      A. Any mentally ill person or persons suffering from substance abuse desiring admission to a treatment facility for diagnosis and/or treatment of a psychiatric disorder or substance abuse and who is deemed suitable for formal voluntary admission by the admitting physician may be so admitted upon his written request.
      B. A patient admitted under the provisions of this Section shall not be detained in the treatment facility for longer than seventy-two hours after making a valid written request for discharge to the director unless an emergency certificate is executed pursuant to R.S. 28:53, or unless judicial commitment is instituted pursuant to R.S. 28:54, after making a valid written request for discharge to the director of the treatment facility.

      . We do not consider the two instances in which Gaines made threats and had to be restrained during his confinement to constitute a serious threat of violence to third parties in the sense contemplated by the statute.

      . Although the truck was locked, the windows were partially rolled down enough for the teenager to slide through the window and start the truck.