author: CHARLES R. JONES, Judge. BELSOME, J.,

text:
    Reggie MACK v. KELLOGG BROWN & ROOT, INC. and EPL Pipeline, L.L.C.
    No. 2005-CA-1245.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 13, 2006.

      Robert J. Young, Jr., Timothy J. Young, N. Husted DeRussy, Robin R. Klibert, The Young Firm, New Orleans, LA, for Plaintiff/Appellant.
    Charles R. “Chuck” Lane, Halliburton Law Department, James A. Holmes, James F. Holmes, Christovich & Kearney, L.L.P., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS SR., and Judge ROLAND L. BELSOME).
   CHARLES R. JONES, Judge.

h The Appellant, Reggie Mack, appeals the judgment of the district court granting the Motion for Partial Summary Judgment in favor of the Appellees, Kellogg Brown & Root, Inc. (KBR), and EPL Pipeline, L.L.C., thereby dismissing the Appellant’s claims for negligence against EPL and/or KBR, under both the Jones Act and the General Maritime Law. For the reasons that follow, we affirm.

Statement of the Facts and Procedural History

Reggie Mack, while employed as a rigger by KBR, alleges that on, or about, June 17, 2001, he attempted to lift a piece of pipe by himself while working aboard the M/V ALLEN BENOIT ELEVATOR, resulting in his injury. KBR contracted with EPL to provide maintenance and labor. EPL chartered several portable work platforms and lift boats, including the MTV ALLEN BENOIT ELEVATOR, to transport KBR maintenance personnel to EPL’s offshore well jackets and platforms.

Mr. Mack and a co-worker, Tyrone Taylor, were assigned to lift sections of pipe onto a pipe rack so that the pipe could be cut into smaller pieces and |ginstaIIed on one of EPL’s well jackets. At some point during the lifting, Mr. Taylor left the appellant alone for five to ten minutes for an undisclosed reason. It was during this time that Mr. Mack got tired of waiting for Mr. Taylor’s return and decided to try and lift the section of pipe by himself, as stated in his deposition.

The job assigned to Mr. Mack required more than one worker to lift the sections of pipe. There was a crane available on the M/V ALLEN BENOIT for lifting heavier sections of pipe. The record indicates that Mr. Mack and Mr. Taylor would normally do the task together, and that he had never attempted to lift sections of pipe this size alone.

On June 19, 2002, Reggie Mack filed suit in the Civil District Court for the Parish of Orleans against KBR and EPL, claiming negligence under the Jones Act and General Maritime Law. The negligence claims stem from injuries of the alleged incident occurring on or about June 17, 2001 aboard the M/V ALLEN BENOIT.

The Appellees filed a Motion for Partial Summary Judgment on March 16, 2005, asserting that if all facts presented were true, then Mr. Mack could not prove negligence under the Jones Act against KBR, nor could he prove negligence under the General Maritime Law against EPL. The district court granted the Motion for Partial Summary Judgment after a hearing on April 29, 2005. The judgment granting the appellees’ motion was signed on May 18, 2005, and reasons for the judgment were issued and signed on May 24, 2005. This timely appeal followed. Mr. Mack finds error with the district court granting the Motion for Partial Summary Judgment.

| ¡¿Discussion

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s considerations of whether summary judgment is appropriate. Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226; Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). Summary judgment is favored in Louisiana law. La. C.C.P. art. 966(A)(2). Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any, scrutinized equally, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art 966(B).

The burden of proof remains with the mover. Board of Assessors of the City of New Orleans v. City of New Orleans, 2002-0691, p. 8 (La.App. 4 Cir. 9/25/02), 829 So.2d 501, 506. If the moving 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). A fact is material if it is essential to the plaintiffs cause of action under the applicable theory of recovery and if, without the establishment of the fact by a preponderance of the evidence, plaintiff could not prevail. Generally, material facts are those that potentially ensure or preclude recovery, affect the litigant’s ultimate success, or determine the outcome of a legal dispute. Prado v. Sloman Neptun Schiffahrts, A.G., 611 So.2d 691, 699 (La.App. 4 Cir. 12/15/92).

The doctrine of unseaworthiness holds a ship owner absolutely liable for any injuries that result from the unseaworthiness of the vessel. Since the vessel Lowner’s duty to maintain a seaworthy vessel is absolute and nondelegable, it extends even to conditions of unseaworthiness created by third parties without any knowledge on part of the owner. See Foster v. Destin Trading Corp., 700 So.2d 199 (La.1997).

In the present case, neither of the appellees were the owner of the M/V ALLEN BENOIT. EPL rented the M/V ALLEN BENOIT under a time charter agreement for a fixed period of time. Under a charter agreement, the owner leases the vessel out for a fixed period of time to a lessee, while at all times retaining physical possession. Also, under a time charter, the owner is responsible for providing a crew to the lessee for normal operations. It is apparent that neither appellee was the owner of the vessel, therefore, the liability solely rests with that of the actual vessel owner.

The Appellant incorrectly interprets Boudreaux v. U.S., 280 F.3d 461 (5th Cir.2002) as supporting jurisprudence. In Boudreaux, the plaintiff and his co-worker decided to traverse an open deck space while carrying a 300-pound valve. One of the men slipped causing the weight of the valve to shift resulting in an injury to Boudreaux. However, Boidreaux is distinguishable from the matter sub judice because the court held the plaintiff and his co-worker both to be at fault when they decided to complete a task aboard a vessel in an unsafe manner. Also, the only reason the vessel owner and the employer were found to be negligent was because the co-worker’s negligence was imputed to them.

In the present case, Mr. Mack also was working with a co-worker on the day of the incident. However, Mr. Mack’s coworker left him alone for an undisclosed reason for a few minutes. Unlike Bou-dreaux, Mr. Mack grew impatient while waiting for the return of his co-worker, which led to his unilateral decision to act in | san unsafe manner and lift the section of pipe by himself contrary to the specific job assignment. Mr. Mack admitted in his deposition he was not under orders to rush the job and the only reason he proceeded to lift the section of pipe alone was because he was tired of waiting. Since Mr. Mack’s co-worker was not around at the time of the incident, the co-worker’s negligence cannot be imputed to the vessel owner or employer as it was done in Boudreaux.

The Appellees support their argument by citing Breeland v. Falcon Drilling Company, Inc., 98-1790 (La.App. 3rd Cir.5/5/99); 733 So.2d 1217, writ denied, 757 So.2d 196. In Breeland, a seaman filed suit for damages under the Jones Act and General Maritime Law alleging negligence by the employer. The plaintiff cut a steel plate in half, which was then put in place using a crane. After the plate was put into place, the plaintiff needed help to turn it over to remove slag from the underside. The plaintiffs supervisor informed him that help would be on the way to move the plate. Instead of waiting for help to arrive, the plaintiff attempted to lift the plate alone thereby injuring his neck. After filing suit, the trial court ruled there was no employer negligence due to the plaintiffs own negligent act of lifting an object he knew he could not do alone.

In the present case, Mr. Mack also filed suit against his employer under the Jones Act and General Maritime Law alleging negligence. Like Breeland, Mr. Mack knew he needed help to lift the section of pipe he was attempting to lift alone. It is clear from his deposition that Mr. Mack normally completed this task with a co-worker and that he never attempted this type of job alone. The following colloquy appears in the record:

Q. Is that something normally you and Tyrone would do together?
A. Yes, sir.
IfiQ. Had you ever done it by yourself before?
A. No, sir.
Q. Why did you do it by yourself?
A. Well, the job needed doing, and I was tired of waiting on him.

In Foster v. Destin Trading Corp., 96-0803 (La.5/30/97), 700 So.2d 199, the Court found that a plaintiffs own fault will proportionately reduce his recovery for injuries, but if a seaman’s own negligence is the sole cause of his injuries, recovery will be barred. The Appellant’s own negligence in proceeding to accomplish his assigned task in an unsafe manner was the sole cause of his injuries and therefore should be barred from any recovery. 700 So.2d at 209.

Decree

For the reasons stated herein, the judgment of the district court granting the Motion for Partial Summary Judgment in favor of Kellogg Brown & Root, Inc., and EPL Pipeline, LLC is hereby affirmed.

AFFIRMED.

BELSOME, J.,

Dissents with Reasons.

hi respectfully dissent.

Appellant, Reggie Mack, argues that the trial court erred in granting partial summary judgment in favor of KBR and EPL given that genuine issues of material fact exist in this matter regarding the negligent action and omissions on behalf of KBR and EPL, which caused or contributed to Appellant’s accident and resulting injuries.

Appellant seeks recovery through negligence claims under both the Jones Act and General Maritime Law. “Issues of negligence and causation in admiralty cases are treated as fact questions.” Wood v. SubSea International, Inc., 99-1320 (La.App. 4 Cir. 3/29/00); 766 So.2d 563, 568. “In a Jones Act case, evidence of the ‘slightest negligence’ is sufficient to sustain a finding of liability; moreover, the plaintiffs burden to show causation is ‘featherweight.’ ” Lyons v. Fleet Operators, Inc., 96-0148 (La.App. 4 Cir. 6/5/96); 676 So.2d 182, 187. In light of the low burden of proving negligence in a Jones Act claim, summary judgment will rarely be appropriate for disposing of a plaintiff-seaman’s claims.

|2The principle of comparative negligence applies in admiralty cases. However, “[assumption of the risk is not a viable defense in a seaman’s case because a seaman must accept, without protest, and without critical examination, the working conditions and appliances presented as part of his employment ... A seaman’s duty is to do the work assigned, not to find the safest way to perform his work.” Breeland v. Falcon Drilling Co., Inc., 98-1790 (La. App. 3 Cir. 5/5/99); 733 So.2d 1217, 1219 (emphasis added). “Reviewing the issue of the plaintiffs contributory negligence, we keep in mind that a seaman’s duty is to do his work as he is instructed and his duty to protect himself is slight.” Cormier v. Cliff’s Drilling Company, 93-1260 (La. App. 3 Cir. 5/4/94); 640 So.2d 552, 555. A seaman has a limited duty to protect himself while performing an assigned task.

Louisiana adopted the principle of comparative fault in 1996, with the amendment of La. C.C. art. 2323, thus the concept of contributory negligence has been replaced in Louisiana. It provides:

A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person’s insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.
B. The provisions of Paragraph A shall apply to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.

LSA-C.C. Art. 2323. We read La. C.C. art. 2323 to allow a plaintiff to recover some damages even if he is 99 percent responsible for his injuries.

|sWe now review the evidence that was before trial court. In his deposition, the Appellant explained why he lifted the pipe by himself.

A: Well, I was — Tyrone had left and went somewhere and I was standing there. And I waited and waited, and he never come back. So I picked the pipe up, put it up in the jack stand, that’s when my leg went to burning.
Q: Is that something you and Tyrone would do together?
A: Yes, sir.
Q: Had you ever done it by yourself before?
A: No sir.
Q: Why did you do it by yourself?
A: Well, the job needed doing, and I was tired of waiting on him.

He also testified that he had not received any specific training on the job he was doing at the time he was injured.

Q: Did anybody ever tell you that you weren’t supposed to pick up a piece of pipe by yourself, that you and the guy out there, Tyrone with you, you should only do it together?
A: No, sir.

Appellant testified that the job was not explicitly rushed, but this should be considered in light of the general atmosphere found aboard well jacket jobs. On any outdoor job, the potential for changing conditions creates a sense of urgency in the work. It is also physically demanding work. Additionally, Appellant testified that “the job needed doing.” It seems unfair to penalize a worker for attempting to do his job, when his other option was to remain docile indefinitely waiting on his co-worker to return.

Ivor Smith, a project manager for KBR, testified that he believed it was more appropriate for mechanical means to be used for the type of job Appellant was performing.

Q: Does KBR have any policies, rules or recommendations on whether or not the crane should be used to move 4-inch pipe into the pipe stand?
A: Well, it is a standard practice for mechanical equipment to be used for lifting pipe from one place to another.
|4Q: Does it make any difference on the length of that pipe?
A: It shouldn’t.
Q: Am I correct to say that any time mechanical means can be used to move pipe rather than manual means, you should use the mechanical means?
A: You should it use it absolutely.

He also testified that the crane should have been used to move a section of pipe as large as the piece Plaintiff-Appellant moved when he hurt himself.

Q: If a person was trying to move a 4-foot piece of pipe of 4-inch pipe on the ALLEN BENOIT, to put something that big up into a pipe stand, they should use the crane to do that, right?
A: I would say yes.

James Blair, another KBR employee, also provided deposition testimony. He explained that normally the crane on the ALLEN BENOIT was used to move sections of pipe.

Q: Okay. When you do see the ALLEN BENOIT on your lease, and when you do see employees or people working with those yellow pipe
stands like the ones I circled, and when you do see those same people putting pipe into the pipe stand, what percentage of the time are they using the crane to assist them to put it in the pipe stand, versus manually putting the pipe in the pipe stand?
A: Nearly 100 percent of the time they’re using the crane.
Q: Have you ever seen people manually putting 4-inch pipe onto those pipe stands?
A: Short pieces.
Q: Define “short” for me. What do you mean by that?
A: Maybe four feet or less.

Kim Anderson, a production foreman for EPL, testified that KBR riggers were not given guidelines on how much pipe they should lift.

Q: Are the KBR riggers given any guidelines on the largest length of pipe, four-inch, that they should try to manually put into the pipe stands out there?
A: No.
Q: Does EPL provide any schooling or training to the KBR riggers specifically on the maximum amount of weight one person should try to pick up?
A: No ...

| ¡¡Thus, we know the following: oil rig work is demanding; Appellant wanted to finish his job; Appellant had no one to help him do the job; a crane is the recommended way to move large sections of pipe; a crane was available but was not being used; Appellant had no mechanical means at his disposal to help him do the job; and, KBR and EPL provided no formal limits on lifting pipe.

The law of the Fourth Circuit provides that the reasonableness of a seaman’s actions in the face of a known risk is a question of fact. “Where an employee takes actions pursuant to the discharge of his employment duties in the face of a known risk, which actions are reasonable in relation to those duties, then the employee is not comparatively negligent ... What actions are reasonable under the circumstances is a question of fact to be determined by the factfinder.” Wood v. SubSea International, Inc., 99-1320 (La. App. 4 Cir. 3/29/00); 766 So.2d 563, 569 (emphasis added). The Court in Wood continued: “Factors to be considered in determining what is reasonable include the availability and practicability of other options.” Id. at 569.

In light of these facts and the law on a seaman’s reasonable behavior, we believe Appellant produced “factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial.” La. C.C.P. art. 966(C). Namely, KBR’s and EPL’s acts and omissions contributed to Appellant’s behavior and ultimately his injury. Appellant’s decision to lift the pipe by himself may have been risky; but it also appears reasonable considering the dearth of other available options. As reasonableness is a question for a factfinder, Appellant’s claims should not have been thrown out on summary judgment.

KBR and EPL rely on Boudreaux v. U.S., 280 F.3d 461 (5th Cir.2002), and Breeland, supra,, to support their position. These cases may be factually analogous to the case at hand. However, what is significant about Boudreaux and Breeland is | fithat they both went to trial and were not disposed of on summary judgment, which is the appropriate disposition of Appellant’s case.

Appellant’s decision to lift the pipe without assistance may or may not have been reasonable in the face of the acts and omissions by KBR and EPL. But that is a question for the factfinder. For the reasons discussed, Appellant’s case should not be inappropriately circumvented by the summary judgment process. Therefore, I would remand the case to the trial court for further proceedings.

      . Appellees have not conceded that Appellant is a seaman; however, they feel "that even if plaintiff is found to be a Jones Act Seaman, he will not be able to recover damages under the statute, nor will he be able to recover damages under the General Maritime Law because the undisputed facts show that no negligence can be proved against either KBR or EPL.”


source: Caselaw Access Project

author: ROLAND L. BELSOME, Judge. /s/ Roland L. Belsome Judge Roland L. Belsome /s/ Terri F. Love Judge Terry F. Love /s/ Leon A. Cannizzaro, Jr. Judge Leon A. Cannizzaro, Jr.

license: Public Domain

text:
    STATE of Louisiana v. Raymond MOLIERE.
    No. 2005-KA-0430.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 15, 2006.
    Order Denying Rehearing Nov. 7, 2006.
    Eddie J. Jordan, Jr., District Attorney, Donna R. Andrieu, Assistant District Attorney, New Orleans, LA, for Plaintiff/Ap-pellee.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO JR., Judge ROLAND L. BELSOME).
   ON APPLICATION FOR REHEARING

ROLAND L. BELSOME, Judge.

hWe initially reversed the trial court’s conviction of Raymond Moliere for attempted second-degree murder because the state could not prove that the armed robbery charge against him had been amended before trial, as required by the Louisiana Criminal Code of Procedure. LSAC.Cr.P. Art. 487.1(A). In its application for rehearing, the State attached a portion of the trial transcript that was missing from their original appellee brief. This portion of the transcript demonstrates the charge against the defendant was amended before trial, and that defendant voiced no objections. Consequently, we granted rehearing and now affirm the trial court’s conviction of Raymond Moliere for attempted second-degree murder.

REHEARING GRANTED; TRIAL COURT AFFIRMED.

ORDER

hIT IS ORDERED that the Motion for Reconsideration and to Remand for the Authentic of the Documents Presented by the District Court-Orleans Parish filed by defendant, Raymond Moliere, is hereby DENIED.

/s/ Roland L. Belsome Judge Roland L. Belsome

/s/ Terri F. Love Judge Terry F. Love

/s/ Leon A. Cannizzaro, Jr. Judge Leon A. Cannizzaro, Jr.


author: MOORE, J.

text:
    Margaret Jeanne Wright ALLEN, Plaintiff-Appellee v. James Lee ALLEN, Defendant-Appellant.
    No. 41,441-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 2006.

      Roland V. McKneely, III, Bossier City, for Appellant.
    Russell 0. Brabham, Shreveport, for Ap-pellee.
    Before WILLIAMS, GASKINS and MOORE, JJ.
   MOORE, J.

|, James Allen appeals a judgment partitioning his pension from Central States Pension Funds. He contends that under the proper partition formula, his former wife Margaret Allen’s share should be much less. We affirm.

Procedural Background

The facts are undisputed. James went to work for Roadway Express in 1976; Roadway began making contributions on his behalf to the pension fund. He married Margaret on February 11, 1982; on January 21, 1992, Margaret filed for art. 102 divorce, effectively terminating the community on that date after 9.934 years, but the community was not immediately partitioned. James retired from Roadway in 2001 with 25 years’ creditable service and, on October 1, 2001, began receiving a pension check of $2,000 per month. In April 2002, Margaret filed the instant petition to partition the community.

At trial in May 2005, Margaret urged that her share of the pension was governed by the fixed percentage rule of Sims v. Sims, 358 So.2d 919 (La.1978), whereby she was entitled to 21% of James’s monthly pension, or $420 per month. James argued that Margaret’s share was governed by the present cash value rule of Hare v. Hodgins, 586 So.2d 118 (La.1991), whereby she was entitled to only $80.14 per month.

The district court applied Sims v. Sims, awarding Margaret $397.37 per month (19.89% of the pension), plus a lump sum of $17,484.28 for amounts unpaid since James’s retirement. James appealed.

| JLegal Principles

The general rules provided by law for partitioning community property are applicable to dividing a community pension right. Hare v. Hodgins, supra at 122. In Sims v. Sims, supra, the supreme court held that a party has an interest in a formér spouse’s pension funds or rights when they become actually payable to or for the former spouse, in the proportion that they are attributable to the former spouse’s employment during the community. The community interest in an unma-tured retirement plan is expressed as a fraction (the “fixed percentage”) of which the numerator represents the number of years of creditable service that accrued during the existence of the community and the denominator represents the total years of creditable service. The community fraction is multiplied by one-half to determine the nonemployee spouse’s share of the retirement benefits. Sims v. Sims, supra at 924; Bullock v. Owens, 35,078 (La.App. 2 Cir. 9/26/01), 796 So.2d 170.

In Hare v. Hodgins, supra, the court recognized that the general rule of Sims v. Sims would not always be equitable. The court stated:

Nevertheless, there will be unusual cases in which a substantial part of the increased retirement benefits earned by the employee spouse after divorce will not result from a foundation provided by prior community earnings. In such cases, the partitioning court should select a more equitable method or modify the community or marital fraction rule to attribute that part of the post-divorce increase to the employee spouse separately. Although the emerging jurisprudential precepts are not yet well defined, some factors may be identified as helpful guidelines in determining when such a modification is required.
|sIn general, the partitioning court should inquire as to whether a substantial post-community increase is due to personal effort or achievement after the termination of the community that has little or no relationship with the prior community. The community should not be given credit when a substantial post-community increase to a retirement fund is due to a singular personal factor such as individual effort, education or achievement resulting in a merit raise or an extraordinary promotion or series of promotions. For example, such an increase in benefits might occur where the employee spouse attains a significantly higher-paying position while remaining within the coverage of the same pension plan, either through earning a post-community degree, or transfer within the company to an unrelated area of service. * * * The employee spouse should expect to profit individually from his extraordinary personal industry after divorce, and the nonemployee spouse is entitled to expect to share in the benefits earned by his or her investment in the community.
586 So.2d at 127-128 (citations omitted).

The trial court’s factual findings regarding the classification and valuation of community assets may not be disturbed unless they are clearly wrong. Thomson v. Thomson, 34,353 (La.App. 2 Cir. 1/24/01), 778 So.2d 736; Modere v. Modere, 93-610 (La.App. 5 Cir. 2/9/94), 632 So.2d 1180.

Discussion

By one assignment of error, James urges the district court erred in applying the Sims formula. James shows that when the community was dissolved, he was in “Class 16” in the pension plan: Roadway was making contributions of $83 per week, and had he retired at that time he would have received a monthly pension of $80.14, which he contends was its present cash value. After the termination of the marriage, however, the Teamsters Union negotiated a new “Class 18.” James enrolled in this class, gradually raising his weekly contribution to $170, with the result that at retirement after 25 years, he received $2,000 per month.

14James contends that these facts satisfy the equitable analysis of Hare v. Hodgins in that his advancement from “Class 16” to “Class 18” represented a substantial increase that resulted not from nonpersonal factors but rather from his own meritorious individual efforts or achievements. Further, the creation of the new class was the work of the Teamsters Union; under the rules of mandate, the union was his agent, and the agent’s acts are ascribed to him. Finally, a nonemployee spouse cannot share in an increase in pension benefits if those benefits arose from mandatory contributions made by collective bargaining; in support, he cites Donaldson v. Donaldson, 02-111 (La.App. 5 Cir. 10/29/02), 831 So.2d 416.

Margaret responds that the case is a simple application of the general “fixed percentage” rule of Sims v. Sims, supra. Margaret submits that the district court’s calculation was correct:

She also submits that the increases of James’s contributions were mandated by the employer, represented only normal cost-of-living adjustments, and applied to all employees across the board — in short, they did not meet the Hare v. Hodgins criteria. Finally, she urges that the court in Goetzman v. Goetzman, 2001-2620 (La. App. 1 Cir. 11/8/02), 835 So.2d 731, rejected a claim identical to James’s.

Amy Heimberg, a supervisor of the pension department at Central States Pension Fund, testified by deposition that James’s pension was regulated by contracts called master freight agreements. She established the facts as outlined above, specifically that if on August 22, 1992, Roadway Ishad stopped making contributions on James’s behalf and then he retired at age 50 (in 1997), his monthly pension would have been $80.14. However, due to his continued employment with Roadway, his pension increased to the current benefit of $2,000 per month. Tellingly, she stated that anyone who attained 25 years’ credit from 1976 to 2001, working for Roadway or any other company governed by the master freight agreements, would have earned the same pension. She added that an employee need only work 180 days a year to obtain one year’s credit.

This evidence supports a conclusion that the enhancement of James’s pension between 1992 and 2001 was not due to singular personal factors resulting in merit raises. It also was not due to an extraordinary promotion, as occurred in Donaldson v. Donaldson, supra. Instead, it arose from circumstances generally affecting all employees. While we appreciate the equitable argument that the pension more than doubled after 1992, there is no showing that James’s work performance or duties increased during that time. On this record, we cannot say the district court was plainly wrong to apply the fixed percentage rule of Sims v. Sims, supra.

Finally, we find no merit to James’s contention that the actions of the union to augment his pension should count as his own personal meritorious effort. The equitable division of a pension under Hare v. Hodgins hinges on “singular personal factors” and “individual effort,” concepts that would appear to preclude the application of agency principles.

| fiConclusion

The district court’s ruling is not clearly wrong. The judgment is therefore affirmed, with all costs to be paid by James Lee Allen.

AFFIRMED.

      . James’s appeal was initially dismissed as arising from a partial final judgment. Allen v. Allen, 41,204 (La.App. 2 Cir. 3/2/06), 925 So.2d 671. The parties later dismissed the reserved claims and the appeal is now properly before this court.


author: LOLLEY, J.

text:
    CITY OF SHREVEPORT Plaintiff-Appellant v. NOEL ESTATE, INC., Harold K. Quinn and Evelyn Humphries Quinn Defendants-Appellees.
    No. 41,148-CA, 41,149-CA, 41,150-CA, 41,151-CA, 41,152-CA, 41,153-CA, 41,-154-CA, 41,155-CA, 41,156-CA, 41,157-CA, 41,158-CA, 41,159-CA, 41,160-CA, 41,161-CA, 41,162-CA, 41,163-CA, 41,-164-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 2006.
    Rehearing Denied Oct. 26, 2006.

      Tutt, Stroud & McKay, By Charles G. Tutt, Jennifer P. McKay, C. Gary Mitchell, Counsel for Appellant, City of Shreveport.
    Phelps Dunbar, By Susie Morgan, Counsel for Appellees, Quinn Red River, LLC.
    Michael J. Vergis, Counsel for Absentee, Appellees.
    Before BROWN, DREW and LOLLEY, JJ.
   LOLLEY, J.

Lin this expropriation litigation and during the course of seventeen years, the First Judicial District Court, Parish of Caddo, State of Louisiana conducted three trials and rendered three separate judgments in favor of Quinn Red River, L.L.C. (“QRR”). The City of Shreveport appeals those judgments, and QRR answers the appeal. For the following reasons, we affirm the judgments rendered in 1999 and 2004, and affirm, as amended, the final valuation judgment.

FACTS

This appeal stems from seventeen different expropriation suits by the City of Shreveport (the “City”), filed between September 25, 1987, and September 16, 1988. During the course of litigation, the trial court issued two judgments regarding the issue of ownership of the property. Both judgments were in QRR’s favor. Then, after seventeen years of litigation, the trial court entered judgment in favor of QRR determining the property’s value and awarding it additional compensation for its property.

This legal saga begins in the 1980s. During that time, the City began plans for the construction of the northern portion of the Clyde Fant Parkway. In order to construct the parkway, the City had to expropriate the land; thus, it filed the seventeen lawsuits, which are listed in Appendix A.. Property in three publicly dedicated subdivisions was affected, those being the subdivisions of Thatchers, Douglas, and Henderson-Ironworks. In the lawsuits, the City sought the expropriation of 35 “parcels,” many of which consisted of numerous lots. Eventually, these seventeen lawsuits were consolidated under one proceeding-suit number 337,256. Notably, many of Lthe lawsuits named as defendants Harold and Evelyn Quinn. Mr. Quinn was a local insurance agent who dabbled in real estate investments on the side. Since the early 1970s, Mr. Quinn had begun purchasing lots in the three subdivisions, eventually owning what we will refer to collectively as the “property.” It is that property which is the subject of this appeal. On February 14,1988, Harold Quinn died; thus, on some of the later filed expropriation suits, Evelyn Quinn was named both individually and as executrix of his succession.

In 1987 and 1988 the City deposited the amounts owed for the property into the registry of the court (totaling $130,848.00) and expropriated the necessary property for the construction of the roadway. The money sat there and no action was taken.

In 1993, the City, QRR and a curator for all of the unknown defendants in the consolidated actions, filed a joint motion to bifurcate the trial to resolve the issue of ownership of the property listed in the various expropriation actions prior to a determination of the just compensation for the property. QRR also sought authority to withdraw the funds from the registry of the court. On March 12, 1999, a judgment was entered in favor of QRR declaring it to be the owner of all of the expropriated property. QRR withdrew the deposited funds pursuant to that judgment (the “1999 Judgment”).

In February 2002, QRR filed an answer in the consolidated actions. |3In that answer, it asserted that just compensation was not paid for the expropriated property. QRR also sought damages in connection with property which was not expropriated but was within QRR’s claimed property, asserting that property had been damaged as a result of the expropriation. In response, the City filed an Exception of Prescription (it had been 14 years since the last expropriation suit had been filed), claiming that QRR could not add new properties not the subject of any of the expropriation actions.

In December 2003 a trial was conducted to resolve the issue of ownership raised in QRR’s 2002 answer. After the trial, a judgment was entered in favor of QRR, finding it the owner of all the property in the 23-acre parcel it claimed (the “2004 Judgment”). The parties had agreed to try the issue of valuation after resolving the ownership issue.

Following that trial, a compensation trial was held in September 2004. As stated, the City had originally deposited $130,848.00 in compensation at the time of the expropriation. At the trial, QRR sought additional money for the property expropriated as well as damages to other parts of the property it claims were affected by the expropriation. The trial court issued its valuation ruling in favor of QRR, and the City filed its motion for new trial, arguing that the judgment failed to comply with La. R.S. 48:456(A), which requires an itemization of amounts for damages, attorneys’ fees and costs. The trial court then entered an amended and final valuation judgment in favor of QRR (the “Valuation Judgment”). The City now appeals that judgment, and QRR answers the appeal.

| ¿DISCUSSION

Not surprisingly, considering that this litigation has been ongoing for almost 20 years, the facts involved are somewhat convoluted. Additionally, the legal issues are complicated, unusual, and read like a Louisiana Civil Code problem on a bar examination. However, despite the numerous volumes of record, pages of trial transcript, and court filings, the case can be boiled down as follows.

There are three judgments involved that address different portions of the disputed property: the 1999 Judgment, the 2004 Judgment, and the Valuation Judgment. The 1999 Judgment involved the ownership of the expropriated property highlighted in trial exhibit 241, which we will make a part of this opinion and refer to as “Appendix B.” The 2004 Judgment involved the ownership of additional property affected by the expropriation and highlighted in trial exhibit 240, which we will also make a part of this opinion and refer to as “Appendix C.” Finally, the Valuation Judgment involved the valuation of all the property. The City appeals all three judgments, and QRR answers the appeal, seeking a higher valuation of the property.

Ownership of the Property

Before addressing the merits of this litigation regarding ownership of the property, we note comments made by Judge Scott Crichton in his oral reasons for ruling on that issue following the 2004 trial:

The [trial] Court is compelled to make two observations which are factored into the analysis of this case. First, it is significant, particularly in light of Louisiana Code of Civil Procedure 3654, that no person nor entity other than [QRR] has |ficome forward and asserted any ownership or any claims of possession to any of the property at issue. Particularly, in light of the testimony ... regarding fencing and “posted” signs, coupled with ... testimony regarding both the fences and gates and extensive acts of possession, the Court concludes that the land at issue was openly possessed and exclusively maintained by the Quinn family.
Second, notwithstanding Quinn’s invitation, the City has declined to name any person or entity that claims ownership or possessory rights to any of the property at issue. Many of the parties initially named by the City as potential owners requested dismissal and asserted no ownership of the subject property, and others made no appearance whatsoever. Thus, while the City has argued extensively that [QRR] has no ownership rights to certain parcels of the land at issue, it has declined to indicate who or what entity does own certain of those parcels.

Notably, after reviewing this lengthy record, we are compelled by those same observations and questions which stand out and must necessarily navigate the course that this opinion follows. Furthermore, we also note that often times, first impression, simple logic, and equity should be combined with legal reasoning to guide courts in reaching an ultimate conclusion. Thus, the observations made by the trial court are shared by this court (particularly after reviewing this lengthy record) and have served to steer us to our final destination.

The 1999 Judgment

The City’s first two assignments of error address the 1999 Judgment. First, they argue that, under a strict reading of the judgment, it did not explicitly determine that QRR owned the expropriated property at the time of the expropriations. Second, the City argues that the trial court erred when a subsequent trial court judge (Judge Crichton) interpreted the 1999 Judgment to state that QRR owned the property at the time of the | Bexpropriations. For the following reasons, we conclude that neither assignment of error has merit.

As stated, the 1999 Judgment addressed the ownership of the property originally described by the City in its various expropriation lawsuits. This judgment was rendered following a trial before Judge John Mosely. After the various expropriation suits were filed, the trial court issued various orders allowing the expropriation of the property described in the suits. This occurred in 1987 and 1988. In 1992 QRR acquired new counsel, the same as they presently have in this appeal. In July 1992 the Quinns and the City filed a joint motion to consolidate the presently numbered action with the sixteen lawsuits listed herein, and the trial court ordered the consolidation. Then, in February 1993 the City and QRR filed a joint motion to bifurcate the trial of the matter, alleging that “at issue in the consolidated actions is the ownership of the property expropriated and the just compensation due the owners of the property expropriated.” The City prepared and filed the memorandum in support of the joint motion to bifurcate the trial, stating that the request was based on La. C.C.P. art. 1038 and relying on State Through Dept. Of Highways v. Kilchrist, 222 So.2d 635 (La.App. 3d Cir.1969) for support. The trial court ordered that the trial of the matter “be bifurcated such that there shall first be a separate trial of the ownership of the property expropriated and then a separate trial of the just compensation due the owners of the property.”

Whereas QRR has filed a motion to dismiss the City’s appeal of the 1999 Judgment arguing that the City failed to timely appeal the judgment, |7and despite the possible merit to QRR’s motion, we will address the merits of the 1999 Judgment and affirm it for the following reasons. Furthermore, we agree with the trial court that the 1999 Judgment determined that the Quinns owned the property at the time of the expropriation.

Louisiana C.C. art. 1853 states, in pertinent part, “A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it.” To constitute a judicial confession the statement must be the express acknowledgment of an adverse fact, the effect of which is to waive evidence as to the subject of the admission or to withdraw the matter from issue. State v. Lamb, 31,919 (La.App.2d Cir.05/07/99), 732 So.2d 1270. Additionally, the adverse party must have believed the fact was no longer at issue or must have relied on it, to his detriment, before it can be a judicial confession. Id., citing Alexis v. Metropolitan Life Ins. Co., 604 So.2d 581 (La.1992).

First, we reiterate that seventeen expropriation lawsuits were originally filed by the City. As explained herein (and as the record reflects), the 1999 Judgment pertained to the property described and expropriated in those lawsuits. See Appendix B. In thirteen of those lawsuits, the City named Harold Quinn (and after his death, his succession) and Evelyn Quinn as a defendant or co-defendant. Notably, Louisiana R.S. 19:123(2) requires that;

lsThe [expropriation] petition shall contain a statement of the purpose for which the property is to be expropriated, describing the property necessary therefor with a plan of the same, a description of the improvements thereon, if any, and the name of the owner if known.

That noted, the City named the Quinns as defendant(s) in the various lawsuits; thus, if the City acted pursuant to the expropriation statutes, as it claimed it did, the City named the Quinns because it believed them to be owner (or co-owner) of the property. We consider such allegations by the City to serve as a judicial admission that the Quinns had an ownership interest in the property expropriated.

Prior to the trial leading up to the 1999 Judgment, as to the other defendants that were named by the City in thé various lawsuits, several of those defendants filed, along with QRR, joint motions to be dismissed from the expropriation lawsuits. Those motions were granted, and the defendants were dismissed, leaving QRR as the only party with an ownership interest. In other lawsuits, a number of the defendants’ whereabouts were unknown and the City claimed they were probably deceased. Those defendants were represented by curators and made appearances at the first ownership trial; however, there was no proof of their actual possession or ownership of the property. Thus, QRR proved better title to the property pursuant to La. C.C.P. art. 3654, and the trial court properly determined it to be owner of the property expropriated. Additionally, the trial court also properly allowed QRR to withdraw the funds deposited by the City in the registry of the court.

Finally, as to the 1999 Judgment and the City’s contentions in this Rappeal, it strikes this court as disingenuous for the City to admit, as the record clearly reflects, that it had no interest in 1999 in contesting the distribution of the funds originally deposited and obviously did not dispute at that time the Quinns’ right to those funds and obvious ownership of the property, only to subsequently dispute the Quinns’ actual ownership of the property when the Quinns sought additional damages. Another glaring fact we consider, as the trial court noted, is that no other individual or party has ever come forward in the 20 years this litigation has ensued and claimed ownership of any of this attractive and obviously valuable property. Nor, of the numerous other additional defendants named in the seventeen various lawsuits, did one other individual come forth to claim the proceeds deposited in the registry of the court. Clearly, when the trial court considered the evidence presented at the 1999 hearing along with the facts that (1) the City actually named the Quinns as owner in almost all of the expropriation lawsuits and did not dispute their initial claims for ownership or for the deposited funds (i.e., an amount the City was willing to pay if the Quinns took it and would go away), and (2) the Quinns were the only parties claiming ownership and providing any evidence of their ownership of the property, it did not err in concluding the Quinns to be the owners of the expropriated property as designated in Appendix B.

As to the City’s argument that the trial court erred in not allowing additional evidence at the later ownership trial regarding the 1999 Judgment, we find no merit to this assignment of error. Pursuant to La. C.C.P. art. 1631, “[t]he court has the power to require that the proceedings bnshall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the trial, so that justice is done.” This matter had already been tried and a final judgement had already been rendered. The City had its opportunity to dispute the ownership issue at the time that single issue was being tried. Additionally, the City did not show that the additional evidence it sought to admit was evidence it did not have at the earlier trial. The trial court was completely within its discretion not to allow the City a second bite at the apple, and this assignment of error is without merit.

The 200k Judgment

The 2004 Judgment stems from QRR’s answer filed February 4, 2002. In that pleading, QRR answered the original expropriation lawsuits and claimed that the City failed to adequately compensate it for its loss due to the expropriation regarding (1) property that was actually taken, and (2) the rest of its property that was only affected by the taking. Notably, QRR alleged that the City’s original valuation of the property was based on individual small tracts and did not consider the property as one tract, as QRR possessed and owned it. In response to QRR’s answer, the City filed an exception of prescription, arguing that pursuant to La. R.S. 13:5111, QRR’s claim for damages against it had prescribed. The City maintains that in its answer, QRR sought damages for additional property-property that was not part of the original expropriation lawsuits. Thus, according to the City, QRR’s claims, which the City characterizes as new, were prescribed. _JjjUltimately, the trial court determined that QRR owned the property referred to in its answer, ruling against the City on its exception of prescription-i.e. the 2004 Judgment.

In its third assignment of error, the City maintains that the trial court erred in failing to find QRR’s claims prescribed. We disagree. First of all, we note that statutes of prescription must be strictly construed. Mercer v. Mercer, 40,-995 (La.App.2d Cir.05/17/06), 930 So.2d 348. The particular statute that the City relies upon is La. R.S. 13:5111(A), which states:

A court of Louisiana rendering a judgment for the plaintiff, in a proceeding brought against the state of Louisiana, a parish, or municipality or other political subdivision or an agency of any of them, for compensation for the taking of property by the defendant, other than through an expropriation proceeding, shall determine and award to the plaintiff, as a part of the costs of court, such sum as will, in the opinion of the court, compensate for reasonable attorney fees actually incurred because of such proceeding. Any settlement of such claim, not reduced to judgment, shall include such reasonable attorney, engineering, and appraisal fees as are actually incurred because of such proceeding. Actions for compensation for property taken by the state, a parish, municipality, or other political subdivision or any one of their respective agencies shall prescribe three years from the date of such taking. (Emphasis added).

Simply put, the City maintains that QRR’s claims are prescribed, because they pertain to other property that was not part of the original expropriation lawsuits and La. R.S. 13:5111(A) applies, barring QRR’s claims by prescription. QRR takes the position that the City failed to sufficiently describe all of the property in the original expropriation lawsuits, and that its entire parcel of property was damaged as a result of the expropriation proceeding; thus, La. R.S. 13:5111(A) is not applicable to their claims for | ^severance damages. Consequently, the trial court had to consider the ownership issue first, in order to determine whether QRR’s claims had prescribed or not.

The primary problem, as we see it, is that the property (“the farm” as the Quinns referred to it), was not legally described as one parcel or tract of land at all. Although QRR refers to the property as one tract or parcel of property, it was in fact various lots from three different subdivisions-which is, in effect, the basis for the City’s argument on prescription. The legal effect is that if the property is treated as a unit of property, QRR might be entitled to severance damages as an effect of the expropriation and its claims are not prescribed. If the property is not considered a unit, and the QRR’s claim for the added property was one of inverse condemnation, then QRR’s claims might be prescribed. Although the trial court ultimately ruled on the merits of the case in favor of QRR, denying the City’s exception of prescription, it did not enunciate a legal reason for the denial. For the following reasons, we conclude that QRR’s claim was for severance damages and was not prescribed-even though it seemed to add property not originally expropriated.

The fact that the property was in fact made up of numerous lots-some of which were actually expropriated for the construction of the parkway, others which were not-does not necessarily defeat QRR’s claim for severance damages to the whole. Numerous cases have held that vacant tracts of land separated merely by lot lines were to be treated as a single unit of land for the purpose of assessing damages due for the taking of a portion |13of the land. See 59 A.L.R.4th 308, Eminent Domain, § 41(a), 1988 WL 546633 and citations therein.

Specifically, in State Through Dept. Of Highways v. Cefalu, 288 So.2d 332 (La.1974), the Louisiana Supreme Court determined that if a claimant can prove unity of use, i.e., that all of the tracts were used for the same purpose as a single unit, then severance damages for all of the property will be recoverable. Id. at 334. The determinative factors underlying the Louisiana unity of use doctrine are a unified use in fact, coupled with a legal right to effect that unified use, i.e., ownership. Id. at 337.

As stated in State Through Dept. of Highways v. Williams, 131 So.2d 600 (La.App. 3d Cir.1961):

Ordinarily whether a landowner’s holding constitutes a single tract or not for purposes of determining severance damages is a practical question to be decided by the trier of fact, which trier “should consider evidence on the use and appearance of the land, its legal divisions and the intent of the owner and conclude whether on the whole the lots are separate or not. In such cases the land itself rather than the map should be looked at, and one part of the parcel is not to be considered separate and independent merely because it was bought at a separate time from the rest and is separated from it by an imaginary line,” citing, 4 Nichols, The Law of Eminent Domain (3rd ed., 1951) Section 14.31, pp. 431-432.

Here, the evidence at trial is clear that the property was used as a unified piece of property by the Quinns at the time of the expropriation. Testimony by Mrs. Quinn and two of the children detailed that on the property the Quinns: regularly visited for recreation purposes; kept various animals; maintained fencing with “posted” signs; and, hosted Fourth of July parties. There was evidence that for several years Mr. Quinn gave 114permission to The Times (the Shreveport newspaper) to shoot its annual celebratory fireworks from the property. In fact, in the correspondence between the newspaper and Mr. Quinn, the property was actually defined as being “[t]he property ... bordered by Red River on the east, with the Levee being the west boundary. The south boundary is Cross Bayou and the north boundary is in the area of Mr. Quinn’s north fence line.” Further, the City received permission from Mr. Quinn to shoot fireworks for the City’s Sesquicentennial Celebration in 1985. Mr. Quinn kept paper records of work done on the property-many of which referred to “the Quinn farm” as the site where the work was performed. Aerial photographs taken and which were presented into evidence showed two mobile homes Mr. Quinn had placed on the property. In fact, from those aerial photos, the property appeared to be one tract of land. The evidence of the Quinns’ use of the property from 1972 until 1987 was noted by the trial court and was not an abuse of discretion. Thus, we conclude that QRR showed that the property was unified in its use.

As to the legal right for that use, i.e., the ownership of the property-that is the issue which is hotly disputed in this litigation. We have already dispensed with the ownership issue as it pertains to the 1999 Judgment and the property shown on Appendix B. In the City’s fifth assignment of error, it argues that the 2004 judgment in favor of QRR was erroneous because (1) the public was the owner of the dedicated streets and alleyways contained in the three subdivisions at issue; (2) Mr. Quinn did not obtain ownership of property contained in the “squatter’s” deed because he 11fiwas not in legal good faith for purposes of acquisitive prescription; and (3) QRR’s possession was not sufficient for acquisition by acquisitive prescription.

The dedicated streets and alleyways

When considering the issue of the ownership of the dedicated streets and alleyways, we make two observations. First, those streets and alleyways had been dedicated as such by the owners of the land when the three subdivisions, Thatchers, Douglas Island, and Henderson-Ironworks, were formed in 1871, 1903, and 1904 respectively. Notably, the settlement of Agurs, of which the three subdivisions were part, was not a part of the City of Shreveport at the time. Although the streets and alleyways were dedicated, not only were they never used, they were not even actually constructed. Second, the aerial photographs of the property corroborate the fact that other than dirt paths/ roads on the property (which, incidentally, do not correspond with the streets and alleyways on the subdivision maps), there were no constructed roadways or alleyways on the property, as designated in the subdivision plat maps. The aerial photographs are extremely convincing to show that this property never included any streets or alleyways, was completely unimproved, and appeared to be (as discussed herein) one piece of unimproved, rural property.

QRR argued that its ancestors in title had legally obtained title to the dedicated streets due to a change in course of the Red River, a navigable waterway, in the 1920s. The trial court agreed that the City was divested of its ownership of the unbuilt public streets when they were covered by theJ^Red River (i.e., they became “undedicated”), and that once the river eventually subsided, the ownership of the streets and alleys, the former riverbed, reverted to the private landowners. The City claims this finding was in error.

“Public things are owned by the state or its political subdivisions in their capacity as public persons.... such as running waters, the waters and bottoms of natural navigable water bodies, the territorial sea, and the seashore.” La. C.C. 450. Thus, when the land encroached upon by a state-owned waterway forms a part of the bed of a navigable stream it becomes the property of the State as a public thing, and the former owner is divested of title. According to QRR, this is what happened when the Red River formed a new channel in the 1920s. Miami Corp. v. State, 186 La. 784, 173 So. 315 (La.1936), cert. denied, 302 U.S. 700, 58 S.Ct. 19, 82 L.Ed. 541 (1937). When the Red River was eventually reverted to its former channel, the riverbed was abandoned, and the owners of the property became reinstated as owners of the abandoned bed, along with the unbuilt streets and alleys in proportion to their previous ownership. See Fitzsimmons v. Cassity, 172 So. 824 (La.App. 2d Cir.1937).

The effect and weight to be given to expert testimony rests within the broad discretion of the trier of fact. Williams v. State Farm Mut. Auto. Ins. Co., 36,439 (La.App.2d Cir.10/23/02), 830 So.2d 379. It is well accepted that the trier of fact is charged with the determination of what credibility it assigns to expert witnesses and the decision about which expert among those testifying is more credible. Hayes v. Entergy Corporation, 37,190 117(La.App.2d Cir.06/25/03), 850 So.2d 916. Credibility determinations, including the evaluation and resolution of conflicts in expert testimony, are factual issues to be resolved by the trier of fact which should not be disturbed on appeal absent manifest error. James v. Robinson, 38,774 (La.App.2d Cir.08/18/04), 880 So.2d 975.

Here, we do not believe the trial court abused its discretion in accepting the opinion of QRR’s expert on this issue, Gary Joiner, who had previously been recognized and qualified as an expert in the areas of history, geography, demography, and cartography. Joiner, relying on newspaper articles and photographs from the period and later, testified that in the 1920s the Red River had formed an alternate western channel across much of the property subject of this litigation. One photo he referred to clearly depicted the area covered with water from the channel of the river. Incidentally, the City’s expert regarding the ownership issue, attorney Reginald Cassibry, stated that he agreed that if the riverbed covered dedicated streets, then the dedication was lost, and the private landowners secured ownership of the property clear of the dedication. Further, we note and stress the trial court’s characterization of Joiner’s testimony as being “unimpeached and unrebutted.” We find that there was no manifest error on the trial court’s part in accepting the testimony by Joiner that the river channel had shifted in the 1920s, and its ultimate legal conclusion based on that testimony that the unbuilt streets and alleyways reverted to the owners of the contiguous property once it was no longer river bottom.

Additionally, the City argues that the trial court only determined that 11sthe Red River opened another river channel which covered “many” of the un-built streets and alleys, not all of them. Thus, the City maintains that the trial court’s judgment did not address all of the streets which were originally dedicated on the property. However, the fact that the river channel did not cover all the streets and alleys is immaterial. When the river changed its course, not only did it cover most of the unbuilt streets, but whichever ones were not covered by water were cutoff by the water. When those unopened streets were cutoff by the river in the 1920s they were deemed to be abandoned. See Ayer v. Kirkwood, 9 La.App. 306, 119 So. 475 (La.App. 1st Cir.1928), writ of review denied, Louisiana Supreme Court, Jan. 2, 1929. Thus, we conclude that as a result of the change in the course of the Red River, all of the dedicated but unopened streets and alleyways on the property reverted to the ownership of QRR’s respective ancestors in title. The trial court was not in error on this issue.

Acquisitive Prescription

The City also argues that the trial court erred in finding that QRR acquired ownership of numerous pieces of the property through 10-year acquisitive prescription. Specifically, the City states that Mr. Quinn was not in good faith “in the legal sense,” because the basis for some of the | ^ownership claims was a deed between him and Luther Burns, whom the city characterizes as a squatter. We disagree.

Ownership and other real rights in immovables may be acquired by the prescription of ten years. La. C.C. art. 3473. The four requisites for ten years’ acquisitive prescription are: (1) possession for ten years; (2) good faith; (3) just title; and (4) a thing susceptible of acquisition by prescription. La. C.C. art. 3475; Ryan v. Lee, 38,352 (La.App.2d Cir.04/14/04), 870 So.2d 1137, writ denied, 2004-1531 (La.10/01/04), 883 So.2d 991. For purposes of acquisitive prescription, a possessor is in good faith when he reasonably believes, in light of objective considerations, that he is owner of the thing he possesses. La. C.C. art. 3480. As further explained in the revision comments to art. 3480, “[t]he trier of facts [sic] thus must ascertain in the light of objective considerations whether a reasonable person in the position of the possessor could believe himself to be the owner.” Good faith is presumed; thus, one who alleges that the possessor is not in good faith has the burden of proving his allegation. The presumption of good faith is rebutted on proof that the possessor knows, or should know, that he is not owner of the thing he possesses. La. C.C. art. 3481.

Knowledge of the seller’s lack of right or interest in the property is not imputed to the buyer, and the buyer’s error in buying from that seller is an error of fact. A buyer who purchases under an error of fact does so in legal good faith. Melancon v. Wood, 357 So.2d 75 (La.App. 4th Cir.1978), writ denied, 359 So.2d 201 (La.1978). As stated in Board of Com’rs for Lafourche Basin Levee Dist. v. Elmer, 268 So.2d 274 (La.App. 4th Cir.1972), writ refused, 263 La. 613, 268 So.2d 675 (La.1972):

[i]n the case of a nonwarranty deed ... such a deed is not alone sufficient to preclude good faith on the part of the possessor (as held in the early cases), but must be considered with other evidence that the possessor doubted the validity of his title. A person ignorant of defects in his title is a good faith possessor, C.C. arts. 503, 3451, and a person who knows of defects in his title is a bad faith possessor, C.C. art. 3452. The determination must stand or fall on the facts and circumstances of each case.

When considering the issue of a possessor’s good faith, the totality of the circumstances must be considered in order to rebut the presumption. Phillips v. Parker, 483 So.2d 972 (La.1986).

Primarily, we note that the issue of possession hinges on proof-and the burden of proof in this case on this particular issue was with the City, not QRR. Unfortunately, neither of the parties to the act, Mr. Quinn or Mr. Burns, was alive to testify at the trial of the matter. Thus, the evidence the City relied upon to rebut the presumption of good faith was the actual conveyance document between the men. Relying on that, the City pointed to what it argued was inadequate consideration paid by Mr. Quinn to Mr. Burns. In Phillips, the Supreme Court specifically determined that “... a purchase by quit claim deed or at an extremely low price may be suggestive (but not conclusive) of knowledge of title defects which may rebut the presumed good faith of the purchaser.” Id. at 978. As pointed out by the trial court, however, even the City’s expert, Cassibry, indicated that the argument of inadequate consideration was hard to evaluate. Notably, although the City argues that the price paid to Mr. Burns was inadequate, this was only argument. Whereas the City compared prices paid by Mr. Quinn to some of his other vendors, it offered no definitive proof, such as factual appraisals of the property in 1972, of what Mr. Burns’ property was worth. Furthermore, although the City characterized Mr. Burns as being a squatter, it offered little conclusive proof that he was indeed. Surely, based on all of the evidence heard and considered by the trial court at the trial, it was in the best position to make an evaluation and accept or reject the City’s position on this issue. Considering that the City had the burden of rebutting the presumed good faith of Mr. Quinn, we cannot say that the trial court’s ultimate conclusion on this matter was an abuse of discretion.

Possession

The City also argues that QRR failed to prove another element of acquisitive prescription-possession. The City maintains that the trial court erred in finding QRR’s evidence sufficient to prove the Quinns’ possession of the property. The trial court determined that based on the testimony at trial, “... it is clear that there were numerous and extensive acts of open possession and ownership from 1972 and 1987 when the property was expropriated.” Such a finding was not in error.

To acquire possession, one must intend to possess as owner and take corporeal possession of the thing. La. C.C. art. 3424. Corporeal possession is the exercise of physical acts of use, detention, or enjoyment over a thing. La. C.C. art. 3425. The party alleging acquisitive prescription must establish that his possession has been continuous and uninterrupted, peaceable, public and unequivocal. La. C.C. art. 3476. The corporeal possession necessary to support the plea of prescription must include such external signs of possession as to indicate clearly that the possessor holds [ggcontrol and dominion over the property. Jacobs v. Southern Advance Bag & Paper Co., 228 La. 462, 472-73, 82 So.2d 765, 768 (1955).

What constitutes possession in any case is a question of fact, and each case depends upon its own facts. Skill-man v. Harvey, 2003-2724 (La.App. 1st Cir.12/30/04), 898 So.2d 431, writ denied, 897 So.2d 610, 2005-0272 (La.04/01/05). A trial court’s factual finding of possession cannot be set aside absent manifest error or unless the finding is clearly wrong. See Livingston v. Unopened Succession of Dixon, 589 So.2d 598 (La.App. 2d Cir.1991).

Here, the trial court noted its reliance on the testimony of Kelly Quinn Barnett, Kevin Quinn, Evelyn Quinn, Janice Sullivan, and J.W. Perritt on the issue of the Quinns’ possession of the property. We do not consider this reliance misplaced, nor was the trial court’s conclusion on the issue of possession manifest error or clearly wrong. Initially, we point to our discussion herein regarding the issue of unity of use of the property, which also points to obvious evidence of possession by the Quinns.

Next, the testimony by Evelyn Quinn and her children was consistent. They all recalled that the family regularly visited the property they called “the farm” commencing in 1972. They all described the various “farm-like” activities the family engaged in on the property-in fact, activities that occurred all over the property. An aerial photograph of the property taken in 1984 shows physical features and landmarks evidencing the Quinns’ possession-the photo is tangible evidence supporting their testimony.

Sullivan’s testimony came from the 1999 ownership trial. She |¡>3worked for Mr. Quinn as his secretary, and she was able to identify many documents that Mr. Quinn kept relating to his ownership and possession of the property. Some of those documents related to: fencing the property; maintaining “posted” signs; planting grass seeds; insuring the property; running utilities and payment of same; the rental of two mobile homes he placed on the property; clearing the property; and filling in a low area. Similarly, Perritt, the owner of a Shreveport fencing company, testified in the first ownership trial. He testified as to doing much of the fence work on the property for Mr. Quinn. Per-ritt recalled fencing on the north side of the property, along Cross Bayou, on the high bank of the river, and near the levee.

We do not consider the trial court’s reliance on the evidence and testimony misplaced, nor was the trial court’s conclusion on the issue of possession manifest error or clearly wrong. Notably, the City produced no witnesses or evidence in an attempt to factually controvert QRR’s evidence on the issue of possession-the City only argues that QRR’s evidence of the Quinns’ possession was insufficient. If we consider the nature of the property-rural, waterfront property, it is evident that the fashion in which the Quinns used the property tells us that their possession was “continuous and uninterrupted, peaceable, public and unequivocal.” Certainly, the evidence QRR presented at the trial was sufficient to prove this element of acquisitive prescription. The trial court did not err on this issue.

_J¿¿Valuation and compensation

After the trial court issued its 2004 Judgment, a final trial was conducted on September 14, 15, 16, and 20, 2004 regarding QRR’s claim for additional compensation. As noted herein, the City had originally deposited $130,848.00 with the registry of the court as compensation for the expropriation. Pursuant to the 1999 Judgment, that amount was withdrawn by QRR, which then sought further compensation and severance damages. At the compensation trial, the trial court considered the testimony and evidence submitted by experts for both QRR and the City. Following the trial, the trial court issued the Valuation Judgment that is being appealed from, awarding QRR $341,143.00, plus attorneys’ fees, expert witness fees and costs, and interest. The City appeals that judgment and QRR answers the appeal on that issue as well.

The City argues that the trial court erred in awarding QRR additional compensation, because QRR failed to carry its burden of proving to a legal certainty and by a preponderance of the evidence the value of the property beyond what was already deposited by the City. In reaching its conclusion, the trial court considered the evidence before it on the issue, primarily evidence offered by the expert witnesses retained by QRR and the City. Ultimately, in this classic battle of the experts, the trial court evidently considered QRR’s expert testimony the most credible. After review of the record before us, such a determination clearly was not in error.

In deciding to accept the opinion of one expert and reject the opinion of another, a trial court can virtually never be manifestly erroneous. Fox v. Fox, 1997-1914 (La.App. 1st Cir.11/06/98), 727 So.2d 514, writ denied, 1999-0265 (La.03/19/99), 740 So.2d 119.

Here, QRR retained the services of two expert appraisers, John Doiron and Phillip Moon. Additionally, the appraisers relied on the work of a civil engineer, James Mohr. Despite the City’s arguments,- we do not believe the trial court committed manifest error in accepting the opinions of QRR’s experts over that of the City’s. The City argues that QRR’s experts’ opinion was based on two erroneous presumptions: (1) the property was a single tract, and (2) the property was best suited to “blue ribbon” industrial use, due to its proximity to downtown Shreveport and its location on the Red River. However, considering our discussion regarding the property’s unity of use, we have determined that as to the first issue, the trial court was not in error in considering the property as a single tract of land, despite the fact that its legal description was of many different lots and subdivisions. Thus, the trial court did not err in accepting this presumption by QRR’s experts.

Regarding Doiron’s and Moon’s determination that the property was suitable for “blue ribbon” industrial use, the City maintains that Doiron’s and Moon’s appraisal was not based on fact (whereas its experts’ opinions were). The City also argues that Doiron, because he was not a Shreveport appraiser, lacked familiarity with the locality of the property, and, therefore, the trial court should have weighed that against accepting his opinion. We recognize that familiarity with the locality is a factor used in weighing expert testimony in connection with land appraisals. See La. Power and Light Co. v. Dixon, 201 So.2d 346 (La.App. 2d Cir. 1967). However, in this case, Doiron utilized the local expertise of Moon, a Shreveport appraiser, in completing his appraisal of the property. Considering that Doiron used a local appraiser to reach an appraisal value, we do not view Doiron’s place of business outside of Shreveport as a detriment at all. Moreover, pursuant to our review of Doiron’s and Moon’s appraisal report, it appears to be based on sufficient fact-i.e., the City’s appraisal report does not appear to be based on any more credible facts than QRR’s.

Together, Doiron and Moon concluded that the property would be best suited for heavy industrial use; however, the appraisal report noted that the property would need significant upgrades to make it usable in that capacity. In order to determine how much those upgrades would cost, Doiron and Moon engaged James D. Mohr, a civil engineer, who determined that the cost to be $514,258.00. Doiron and Moon deducted this amount from the amount they concluded the property would have been worth as a “blue ribbon” industrial site in 1987 and they valued the property “as is” (or actually “as was” in 1987) at $490,666. That figure divided by the amount of actual acreage gave them a square foot value of $.50. With that square footage value, Doiron and Moon determined the following:

The trial court accepted this amount and awarded it to QRR, less $122,848.00 which was previously deposited in the registry of the court for |OTthe expropriation and withdrawn by QRR. The final amount awarded for additional compensation to QRR was $341,143.00.

The trial court heard the testimony of all of the expert witnesses, and it was in the best position to consider the in-depth examination and cross-examination of the experts on the issue. The trial court also was able to review the lengthy and detailed appraisal report, which on the cold record has every appearance of being based on fact, along with the actual live testimony of the preparers-Doiron and Moon. All of the experts were subject to examination and cross-examination. Unless QRR’s experts opinions were patently unsound, which the City has not conclusively shown, it is not for this court to second guess the conclusions of the trial court on this issue. Thus, we determine that the trial court’s conclusion was not in error. Moreover, considering these reasons, we further cannot find that QRR is entitled to any greater amount than that which was already awarded; thus, we conclude that QRR’s answer to the City’s appeal requesting an increase in the amount of additional compensation is also without merit.

Interest

In its final assignment of error, the City argues that the trial court erred in its interest award on suits numbered 345,808 and 346,594, when it awarded interest on those two suits from the dates of expropriation rather than from the dates of legal demand. We agree.

| yjn 1988, when the expropriations occurred, La. R.S. 48:455 stated:

If the amount finally awarded for compensation exceeds the amount deposited, the judgment shall include legal interest on the excess from the date of legal demand until paid, but such interest shall not accrue on any award made for expert fees or attorney fees prior to judgment.

(Emphasis added). However, in 1992, the statute was amended to state:

If the amount finally awarded for compensation exceeds the amount deposited, the judgment shall include legal interest on the excess from the date of presentation of the petition as provided in R.S. 48:442 until paid, but such interest shall not accrue on any award made for expert fees or attorney fees prior to judgment.

(Emphasis added).

In State Through Dept. of Transp. and Development v. Estate of Davis, 572 So.2d 39, 44 (La.1990), the Louisiana Supreme Court determined that “[l]egal interest is a matter of substantive law and a change in the law that alters an award of legal interest should not be given retroactive effect unless the legislature so provides.” Whereas the First Circuit considered the 1992 amendments to the statute as “interpretive,” we do not agree and consider the change a substantive one. See State, Dept. of Transp. and Development v. McMillion Dozer Service, Inc., 93-590 (La.App. 5th Cir.05/31/94), 639 So.2d 766, writ denied, 94-2345, 94-2348 (La.11/29/94), 646 So.2d 399, cert denied, 514 U.S. 1108, 115 S.Ct. 1958, 131 L.Ed.2d 850 (1995). Thus, as a substantive change, we conclude that the current version of the La. R.S. 48:455 cannot be given retroactive effect, and that the version in effect at the time of the expropriations must be applied. Accordingly, the trial court erred, and the legal interest in suits numbered 345,808 and 346,594 should run from the date of legal demand, |a8which was February 4, 2002. We amend the trial court’s judgment accordingly.

QRR’s Assignments of Error

In addition to its claim that the amount of compensation was insufficient, QRR raises additional assignments of error in its answer to the City’s appeal. First, it argues that the trial court abused its discretion in not awarding the full amount of attorneys’ fees allowed under La. R.S. 48:453(E). We disagree.

Here, the trial court awarded QRR $175,000.00 in attorneys’ fees. QRR states this amount was lower than the amount allowed under La. R.S. 48:453(E), and under the statute it is entitled to $205,878.78 in attorneys’ fees. Louisiana R.S. 48:453(E) states:

Reasonable attorney fees may be awarded by the court if the amount of the compensation deposited in the registry of the court is less than the amount of compensation awarded in the judgment. Such attorney fees in no event shall exceed twenty-five percent of the difference between the award and the amount deposited in the registry of the court.

An award of attorney fees under this article is permissive. Red River Waterway Com’n v. Fry, 628 So.2d 38 (La.App. 2d Cir.1993), writ denied, 93-3050 (La.02/04/94), 633 So.2d 581. The trial court is vested with much discretion, and the award will not be disturbed in the absence of a clear abuse of that discretion. Id. Here, the trial court granted QRR’s claim for attorney fees and awarded it $175,000.00 for attorney fees. We do not find this to be an abuse of discretion simply because it does not amount to 25 percent of the difference between the award and the amount deposited into the registry of the court. QRR’s assignment of error on this issue is ^without merit.

QRR also maintains that the trial court erred in its award of expert witness fees and costs. Specifically, QRR notes that the trial court awarded expert witness fees and costs in the amount of $75,000.00 and $7,833.97, respectively, when, in fact, the expert fees and costs incurred were $110,935.20 and $11,138.94, respectively.

Except as otherwise provided by law, the trial court may render judgment for costs, or any part thereof, against any party, as it may consider equitable. La. C.C.P. art.1920. The trial judge has great discretion in awarding and fixing costs and expert witness fees. A trial court’s assessment of costs can be reversed by an appellate court only upon a showing of abuse of discretion. Allstate Enterprises, Inc. v. Brown, 39,467 (La.App.2d Cir.06/29/05), 907 So.2d 904.

Specifically as to expert witness fees, witnesses called to testify as expert witnesses shall be compensated for their services, with the amount to be determined by the court and taxed as costs to be paid by the party cast in judgment. La. R.S. 13:3666. An expert witness is entitled to reasonable compensation for his court appearance and for his preparatory work. The trial judge is not required to set an expert fee at the amount charged by the expert witness. Allstate, supra; City of Shreveport v. Chanse Gas Corp., 34,958, 34,959 (La.App.2d Cir.08/22/01), 794 So.2d 962, writs denied, 2001-2657, 805 So.2d 209, 2001-2660 (La.01/04/02), 805 So.2d 209; Hammock v. Louisiana State Univ. Medical Ctr. in Shreveport, 34,086 (La. App.2d Cir.11/01/00), 772 So.2d 306. Relevant factors in fixing the fee include the ^time spent testifying, time spent in preparation for trial, time spent away from regular duties while waiting to testify, extent and nature of the work performed, and the knowledge, attainments of the expert. City of Shreveport, supra. The court may also consider the helpfulness of the expert’s report and testimony. Id. Here as to the expert witness fees, the trial court ordered the payment of a substantial portion of the fees, almost 70% of the total. We see no abuse of discretion in the amount of this award.

As to the costs awarded, again such an award is subject to the discretion of the trial court and will not be reversed absent an abuse of that discretion. Louisiana jurisprudence is replete with cases determining such, and we cannot say that, here, the trial court abused its discretion in its award of costs, which was 70% of the total costs expended by QRR in the litigation. Thus, we conclude that the trial court’s award of expert witness fees and costs was within its discretion and was not in error.

CONCLUSION

For the foregoing reasons, the 1999 Judgment and the 2004 Judgment in favor of Quinn Red River, L.L.C. are hereby affirmed. The Valuation Judgment is amended in accordance with this opinion as it pertains to interest awarded in suits numbered 345,808 and 346,594, and as amended is also affirmed. Costs of this appeal are not assessed. See La. R.S. 13:4521.

1999 AND 2004 JUDGMENTS AFFIRMED; VALUATION JUDGMENT, AS AMENDED, AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, STEWART, DREW, MOORE and LOLLEY, JJ.

Rehearing denied.

I 32

APPENDIX A

Suit No. Named Defendants) Pate fiied

337.257 C.L. Rateliff, Harold K. Quinn, 9/25/87 and Evelyn Humphries Quinn

337.258 W.C. Agurs, Richie Bousseau 9/25/87 Agurs, Harold K. Quinn, and Evelyn Humphries Quinn

337.259 E.D. Foster, C.L. Ratcliff, Ha- 9/25/87 rold K. Quinn, and Evelyn Humphries Quinn

337.260 Virginia Townsend, Harold K. 9/25/87 Quinn, and Evelyn Humphries Quinn

337.261 P.M. Blake, W.C. Agurs, 9/25/87 Richie Bousseau Agurs, Harold K. Quinn, and Evelyn Hum-phries Quinn

337,828 E.F. Sqnquenettie and spouse, 10/18/87 Harold K. Quinn, and Evelyn Humphries Quinn

341,057 Nettie Soniat Wright, Conner-ly 2/8/88 I. Wright, Eugenie Soniat Atkis, George T. Atkins, Joseph Moore Soniat, Joe B. Atkinson, Jr., Richia Atkinson Hail

341,215 Noel Estate, Inc. 2/24/88

342,054 W.C. Agurs and spouse, Richie 3/29/88 B. Agurs, Spouse of J.G. Jones, Succession of Harold K. Quinn, and Evelyn Humphries Quinn

342,055 Mrs. M.D. Agurs, W.C. Agurs, 3/24/88 Continental Bank & Trust Co., Spouse of Walter C. Cochran, Succession of Harold K. Quinn, and Evelyn Humphries Quinn

342,056 Jessie-Lee F. Decker, Spouse of 3/29/88 Orlando T. Decker, Spouse of Lydia Decker

342,775 Succession of Harold K. Quinn 4/27/88 and Evelyn Humphries Quinn

133345,766 Succession of Harold K. Quinn 8/12/88 and Evelyn Humphries Quinn

345,767 Succession of Harold K. Quinn 8/12/88 Evelyn Humphries Quinn, Marjorie Bushey Atkinson, Richia Atkinson Hail

Suit No. 345,808 Named Defendant(s) Date filed Succession of Harold K. Quinn, Evelyn Humphries Quinn, Mary Paye Dinwiddie indivdually and as trustee, Petty Realty Camp, Inc.

Suit No. Named Defendants) Date filed 346,594 Emily Denning Erickson, Au- 9/16/88 gust Erickson, Dorothea Erickson Valerius, C.B. Erickson, Jr., Marjorie B. Atkinson, Riehia Atkinson Hail, Succession of Harold K. Quinn, and Evelyn Humphries Quinn

      . Later, on April 11, 1996, Evelyn Quinn, individually and as executrix of the Succession of Harold R. Quinn, transferred all of their interest in the property to Quinn Commercial Property, L.L.C. On October 8, 1998, that entity deeded the property to Quinn Red River, L.L.C., the entity that is currently a party to this litigation. For ease of reference, despite the time period, we will refer to the party in interest as QRR.

      . Those proceedings were First Judicial District Court nos. 337,257; 337,258; 337,259; 337.260; 337.261: 337.828; 342.054; 342,-055; 342,775; 345,766; 345,767; 345,808; and, 346,594.

      . QRR filed a motion requesting the trial court consider the City's exceptions after the trial of the ownership issue. Pursuant to a minute entry dated May 19, 2003, the parties agreed to defer the prescription issue to the ownership trial.

      . Although we conclude that the trial court did not abuse its discretion in accepting Joiner’s testimony, and consequently QRR’s waterbed theory, we cannot ignore the fact that almost 100 years went by at the time of the expropriation, and the streets and alleyways in question were never constructed.

      Although we are well aware that private persons may not acquire property by acquisitive prescription from a political subdivision, "a private person may acquire by acquisitive prescription the ownership of a property that a political subdivision holds in its capacity as a private person.” See Professor A.N. Yian-nopoulos, 2 La. Civ. Law Treatise § 104, p. 232-33 (2001). Furthermore, "unopened ... streets and parish roads are private things, that is, things that the municipality owns in its capacity as a private person. These should be susceptible of acquisitive prescription." Id., citations omitted (emphasis original).

      . QRR did not dispute the adequacy of the compensation paid in suit no. 342,775. Thus, the amount of compensation originally deposited by the City for that parcel, $8,000.00, was not deducted.

      . Although the City failed to brief this assignment of error in it original appeal brief, it is within this court’s discretion to address the assignment or not.


author: EZELL, Judge.

text:
    The COTTONPORT BANK v. DD GROUP, INC. d/b/a Central Ford, et al.
    No. CA 06-328.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.
    Stephen Charles Polito, Henry Alan McCall, Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., Lake Charles, LA, for Plaintiff/Appellee, The Cottonport Bank.
    Stephen D. Wheelis, Richard Alan Ro-zanski, J.P. D’Albor, Wheelis & Rozanski, Alexandria, LA, for Defendants/Appellants, DD Group, Inc., Central Ford, Inc., Douglas B. Gehrig.
    Court composed of OSWALD A. DECUIR, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

L Douglas Gehrig appeals a trial court judgment rendered pursuant to a motion for summary judgment which found him liable to The Cottonport Bank in the amount of $62,364.28. Mr. Gehrig claims the trial court erred in finding that there were no genuine issues of material fact surrounding a commercial guaranty signed by him. For the following reasons, we reverse.

FACTS

DD Group, Inc. is a Louisiana corporation domiciled in Lake Charles, Louisiana. It was incorporated by Douglas Gehrig in 1997, and he became one of the directors. The other director was Donald Goodlow. DD Group applied with the Louisiana Secretary of State to operate under the trade name Central Ford in order to operate a Ford Motor Company automobile dealership in Avoyelles Parish, Louisiana. Financing for this business was obtained from The Cottonport Bank on several occasions.

The particular loan at issue in this case concerns promissory note # 67006678 which was dated February 3, 1999, in the amount of $250,050.00. At the same time a commercial guaranty was executed by Mr. Gehrig.

In 2001 Mr. Goodlow was granted a discharge of his debts by the United States Bankruptcy Court. However, a consent judgment was signed denying the discharge of debt owed to DD Group, Inc. and Mr. Gehrig.

On September 20, 2002, The Cottonport Bank filed suit on the above promissory note against DD Group, Inc. d/b/a Central Ford and Mr. Gehrig. This case was previously before this court pursuant to a writ of review on a denial of an exception of nonjoinder of a party, Mr. Goodlow, and the denial of an exception of no cause of action. This court found no merit to either argument. The Cottonport Bank v. DD Group, Inc., 04-242 (La.App. 3 Cir. 2/2/05), 893 So.2d 171.

Subsequently, The Cottonport Bank filed a motion for summary judgment. Finding no genuine issues of material fact concerning Mr. Gehrig’s liability pursuant to the commercial guaranty, judgment was entered on December 8, 2005, holding Mr. Gehrig liable to The Cottonport Bank in the amount of $62,364.28 with interest. Attorney fees were also awarded in the amount of twenty-five percent of the sum of principal and interest. Mr. Gehrig appeals claiming genuine issues of material fact exist concerning the validity of the loan documents and the authority of Mr. Goodlow to borrow the money. He also contests the amount of attorney fees.

DISCUSSION

Mr. Gehrig raises several points which he urges present genuine issues of material fact as to his liability pursuant to the commercial guaranty form. He argues that there are ambiguities in the documents and that Mr. Goodlow did not have authority to borrow over $10,000.00.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991). A court must grant a motion for summary judgment “if the depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” LSA-C.C.P. art. 966(B). The summary judgment procedure is favored under our law. LSA-C.C.P. art. 966(A)(2).

Lemann v. Essen Lane Daiquiris, Inc., 05-1095, p. 6 (La.3/10/96), 923 So.2d 627, 632. “Because the applicable substantive law determines materiality, whether a par-tieular fact in dispute is material can be seen only in light of the substantive law applicable to the case.” Id.

A contract of guaranty is equivalent to a contract of suretyship, and the two may be used interchangeably. The Cottonport Bank v. Reason, 01-1039 (La. App. 3 Cir. 12/12/01), 801 So.2d 1236. Pursuant to La.Civ.Code art. 3046, the surety can assert any defenses to the principal obligation against the creditor that the principal obligor could assert except lack of capacity or discharge in bankruptcy of the principal obligor.

Mr. Gehrig claims that the documents themselves create issues of fact. The promissory note at issue lists the borrower as “DONALD GOODLOW” and lists his personal social security number. “D/B/A CENTRAL FORD” is then typed under Mr. Goodlow’s name. The “PROMISE TO PAY” language then provides that “DONALD GOODLOW (“Borrower”) promises to pay to the order of THE COTTONPORT BANK (“Lender”).” However, in the “MULTIPLE ADVANCE LOAN” section he is listed as “DONALD GOODLOW, PRESIDENT.” The loan document is simply signed by Donald Goodlow with no indication of any capacity.

The commercial guaranty lists the borrower in the same manner as the promissory note. However, in the definition of borrower it states, “DONALD GOOD-LOW, D/B/A CENTRAL FORD.” While we agree the intention may have been to bind the corporation, we cannot say it is clear from the documents.

To further his argument that there are questions of material fact surrounding the documentation, Mr. Gehrig argues that there is a 1997 corporate resolution limiting Mr. Goodlow’s borrowing authority on behalf of DD Group to $10,000.00. On the other hand, The Cottonport Bank asserts that Mr. Gehrig’s actions in executing the commercial guaranty negate any limitation in the resolution.

Pursuant to La.Civ.Code art. 2997(3), authority must be expressly given to contract a loan. This court in South Louisiana Bank v. Williams, 591 So.2d 375, 378 (La.App. 3 Cir.1991), unit denied, 596 So.2d 211 (La.1992), quoted from Carey Hodges Associates, Inc. v. Continental Fidelity Corp., 264 So.2d 734, 736 (La.App. 1 Cir.1972) (alteration in original), regarding a third person’s knowledge of the agent’s authority when dealing with a corporation:

“[T]hat the person who deals with a corporation is chargeable with notice of the limitations and restrictions placed upon it by statute and is generally bound to know whether or not the person who presumes to represent the corporation and act in its name is authorized to do so. Our jurisprudence holds additionally that the person dealing with an agent is put on his guard by the fact of the person’s alleged agency alone and deals with him at his own risk. It is his duty to inquire into and ascertain the nature and extent of his powers as an agent and determine whether or not the act or contract about to be consummated comes within the province of his agency and will or will not bind his principal.”

The Cottonport Bank admits that it has a corporate resolution specifically authorizing Donald Goodlow as president to borrow $170,050.00 on a previous loan. The record is devoid of any such authority for the loan at dispute in this case. However, while there is no resolution providing for Mr. Goodlow’s authority to borrow, the absence of a resolution is not fatal. Greenleaf Plantation, Inc. v. Kieffer, 403 So.2d 100 (La.App. 3 Cir.), writ denied, 409 So.2d 675 (La.1981). This court in Greenleaf held that pursuant to the doctrines of estoppel, informal ratification, and apparent authority, the corporation was bound by the actions of its president in expressing an intent to exercise an option to purchase.

We do agree with The Cottonport Bank that there is no evidence that it owed a fiduciary duty to Mr. Gehrig. “Pursuant to La.R.S. 6:1124, no fiduciary relationship exists between a bank and its customers or third parties unless it is agreed in writing that a relationship of agency or trust exists between the parties.” Singleton v. American Sec. Bank of Ville Platte, Inc., 02-1109, p. 11 (La.App. 3 Cir. 4/30/03), 849 So.2d 72, 78.

However, the record does not establish that Mr. Goodlow had the authority to borrow money on behalf of Central Ford. While there is no doubt that Mr. Gehrig signed a commercial guaranty securing promissory note #67006678, we do not know 1 fiif he was securing a loan on behalf of the corporation or for Mr. Goodlow personally. Based on this determination, there may or may not be different defenses that Mr. Gehrig can raise as a guarantor of the loan.

We find that there are genuine issues of material fact yet to be determined. While the trial court may still find Mr. Gehrig responsible for the balance on this loan pursuant to the commercial guaranty, there are still too many facts at issue, making summary judgment inappropriate. With this finding, there is no need to discuss the issue of the amount of attorney fees awarded.

For these reasons the judgment of the trial court granting The Cottonport Bank’s motion for summary judgment against Douglas Gehrig is reversed, and the case is remanded for further proceedings. Costs of this appeal are assessed to The Cotton-port Bank.

REVERSED AND REMANDED.