author: HUGHES, J.

text:
    Linda HIDALGO and Ivy Hidalgo v. CATFISH QUEEN PARTNERSHIP IN COMMENDAM D/B/A Belle of Baton Rouge Casino.
    No. 2006 CA 1531.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2007.

      Allen M. Posey, Jr., Baton Rouge, Counsel for Plaintiffs/Appellants Linda Hidalgo and Ivy Hidalgo.
    John Stone Campbell, III, Baton Rouge, Counsel for Defendant/Appellee Catfish Queen Partnership d/b/a Belle of Baton Rouge Casino.
    Before: PETTIGREW, DOWNING, and HUGHES, JJ.
   HUGHES, J.

| ¡¿Plaintiffs appeal a district court judgment dismissing their claims against the defendant based on a finding that the plaintiffs’ suit had been abandoned. For the following reasons, we reverse.

FACTUAL AND PROCEDURAL HISTORY

On July 31, 1997, plaintiffs, Linda and Ivy Hidalgo, filed a personal injury suit against defendant, Catfish Queen Partnership in Commendam d/b/a Belle of Baton Rouge Casino (Catfish Queen). On January 26, 2005 Catfish Queen filed a motion to dismiss the Hidalgos’ suit on the basis of abandonment. Therein, it alleged that the last step taken in the prosecution or defense of the matter was when it propounded discovery to the Hidalgos on January 11, 2000. Catfish Queen conceded that the Hidalgos had “filed requests for scheduling conferences with the court on January 10, 2003 and again on August 8, 2005.” It argued, however, that those requests were not steps in the prosecution of the case sufficient to interrupt the prescribed period for abandonment set forth in Louisiana Code of Civil Procedure article 561.

At the contradictory hearing held on Catfish Queen’s motion to dismiss, the Hi-dalgos submitted into evidence copies of their attorney’s written requests for the conferences, stamped “filed” by the clerk of court. It is undisputed that the clerk’s office filed the original requests in the record of this matter in accordance with Uniform Rules for Louisiana District Courts, Rule 9.14(b).

LThe written requests listed notice information pertaining to counsel for each of the parties and expressly stated:

In accordance with Louisiana Code of Civil Procedure article 1551, I request that a scheduling conference be scheduled between all counsel of record and the court.

The Hidalgos also submitted a copy of the case management schedule generated by the district court in response to their requests. The schedule indicated that the objectives of the requested conferences included the setting of deadlines for the parties to complete discovery, file motions, and to exchange and supplement witness and exhibit lists, in addition to fixing the date on which the pretrial order was to be filed with the court. Once completed, the case management schedule was to be signed by the court adopting it as an “Order of th[e] Court.”

Despite the Hidalgos’ submissions, the district court concluded that their requests for the conferences were not steps in the prosecution of their suit and, thus, concluded that their suit had been abandoned. On April 12, |42006, the district court signed a judgment dismissing the Hidal-gos’ suit without prejudice. From this judgment, the Hidalgos appeal.

LAW AND ANALYSIS

Abandonment is governed by Louisiana Code of Civil Procedure Article 561, which reads, in pertinent part:

A. (1) An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years....
(2) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been taken for a period of three years in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The sheriff shall serve the order in the manner provided in Article 1314, and shall execute a return pursuant to Article 1292.
* * *
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

The supreme court has construed Article 561 as imposing three requirements on plaintiffs engaging in litigation:

First, plaintiffs must take some “step” towards prosecution of their lawsuit. In this context, a “step” is defined as taking formal action before the court which is intended to hasten the suit toward judgment, or the taking of a deposition with or without formal notice. Second, the step must be taken in the proceeding and, with the exception of formal discovery, must appear in the record of the suit. Third, the step must be taken within the legislatively prescribed time period of the last step taken by either party; sufficient action by either plaintiff or defendant will be deemed a step. (Footnotes omitted).

Clark v. State Farm Mut. Auto. Ins. Co., 2000-3010, pp. 5-6 (La.5/15/01), 785 So.2d 779, 784.

The jurisprudence further instructs that Article 561 is to be liberally interpreted and that any action or step taken to move a case toward judgment should be considered. The article was not intended to dismiss those cases in | swhich a plaintiff has clearly demonstrated before the court during the prescribed period that he does not intend to abandon his lawsuit. Breaux v. Auto Zone, Inc., 2000-1534, p. 3 (La.App. 1 Cir. 12/15/00), 787 So.2d 322, 324 (per curiam), writ denied, 2001-0172 (La.3/16/01), 787 So.2d 316. Dismissal of a plaintiffs lawsuit is the harshest of remedies. The law favors and justice requires that an action be maintained whenever possible so that the aggrieved party has his day in court to which he is entitled. Article 561 is not designed to dismiss actions on mere technicalities but to dismiss those actions that in fact have been abandoned. Breaux, 2000-1534 at pp. 3-4, 787 So.2d at 324.

In this matter, the Hidalgos assert that the district court erred in finding that their requests for scheduling conferences, which were filed into the record, did not constitute steps in the prosecution of their claims. Although it has long been settled that a motion to schedule a case for trial, if filed in the court record, is a step in the prosecution of an action, no published case has been found that rules on whether a proper request for a status and/or scheduling conference is likewise sufficient to interrupt the three-year period for abandonment. See Tinsley v. Stafford, 93-1668, p. 4 (La.App. 1 Cir. 10/7/94), 644 So.2d 677, 678-79, writ denied, 94-2753 (La.1/6/95), 648 So.2d 933 (citing Murphy v. Hurdle Planting & Livestock Co. Inc., 364 So.2d 167 (La.App. 1 Cir.1978), writ denied, 366 So.2d 562 (La.1979)). In light of the foregoing legal precepts and the particular facts |fiof this case, we conclude that these procedurally proper and timely requests constituted steps in the prosecution of the Hidalgos’ case as contemplated by article 561.

In determining whether the first requirement of the Clark criteria has been satisfied, it must be acknowledged that the plaintiffs’ pertinent requests for the scheduling conferences were formal actions in the court and were specifically authorized by and executed in accordance with, LSA-C.C.P. Article 1551 and the Uniform Rules for Louisiana District Courts, Rule 9.14(b).

Further, given the objectives of the conferences as set forth in the case management schedule, it must be admitted that the ultimate purpose of the conference was to hasten the matter to judgment by selecting deadlines for the parties to conclude all pretrial matters. Indeed, the comments to Article 1551 state that the purpose of such a conference is to “[prepare] the case for trial.” Moreover, many district courts require scheduling conferences prior to fixing the matter for trial. Thus, the requests for the scheduling conferences herein could be said to be a necessary step that the Hidalgos had to fulfill in order to hasten their case to judgment.

The second and third requirements of the Clark criteria are likewise satisfied. It is undisputed that the Hidalgos’ requests were filed into the record of this matter. Moreover, the Hidalgos’ first request was filed within three years of January 11, 2000, which was the undisputed date of the last |7step taken by Catfish Queen, and that the Hidalgos’ second request was filed well within three years of their initial request. Admittedly, the district court did not ultimately conduct a scheduling conference as a result of the Hidalgos’ first request. But the fact that a valid step was taken by the Hidalgos is in no way negated by the subsequent outcome. Therefore, we conclude that the Hidalgos’ suit was not abandoned.

CONCLUSION

For the foregoing reasons, we hereby reverse the April 12, 2006 judgment dismissing Linda and Ivy Hidalgo’s claims against Catfish Queen. All costs of this appeal are assessed to Catfish Queen Partnership in Commendam d/b/a Belle of Baton Rouge Casino.

REVERSED.

      . Rule 9.14(b) of the Uniform Rules for Louisiana District Courts provides, in pertinent part:
      Any party may request in writing ... a La.Code Civ. Proc. Art. 1551 scheduling conference between counsel and the court.... A party requesting such a conference must deliver the original and one copy of the request to the clerk of court. The clerk of court shall file the original in the suit record, stamp "filed” on the copy, and route the copy to the assigned judge. Within 30 days after receiving a request for a scheduling conference, the court shall schedule a conference....

      . Louisiana Code of Civil Procedure Article 1551 provides as follows:
      A.In any civil action in a district court the court may in its discretion direct the attorneys for the parties to appear before it for conferences to consider any of the following:
      (1) The simplification of the issues, including the elimination of frivolous claims or defenses.
      (2) The necessity or desirability of amendments to the pleadings.
      (3) What material facts and issues exist without substantial controversy, and what material facts and issues are actually and in good faith controverted.
      (4) Proof, stipulations regarding the authenticity of documents, and advance rulings from the court on the admissibility of evidence.
      (5) Limitations or restrictions on or regulation of the use of expert testimony under Louisiana Code of Evidence Article 702.
      (6) The control and scheduling of discovery.
      (7) The identification of witnesses, documents, and exhibits.
      (8) Such other matters as may aid in the disposition of the action.
      B. The court shall render an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel. Such order controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.
      C. If a party’s attorney fails to obey a pretrial order, or to appear at the pretrial and scheduling conference, or is substantially unprepared to participate in the conference or fails to participate in good faith, the court, on its own motion or on the motion of a party, after hearing, may make such orders as are just, including orders provided in Article 1471(2), (3), and (4). In lieu of or in addition to any other sanction, the court may require the party or the attorney representing the party or both to pay the reasonable expenses incurred by noncompliance with this Paragraph, including attorney fees.

      . Published cases have established that a defendant waives his right to plead abandonment by appearing at and participating in a scheduling conference and signing a case management schedule because such actions are considered inconsistent with an intent to treat the case as abandoned. Seagrave v. Dean, 98-1295, p. 3 (La.App. 1 Cir. 7/6/99), 739 So.2d 923, 924, writ denied, 99-2856 (La. 12/17/99), 751 So.2d 879. See also Chevron Oil Co. v. Traigle, 436 So.2d 530 (La.1983).
      In an unpublished opinion, McAnelly v. Aero Resources, LLC, 2005-0351, p. 5 (La.App. 1 Cir. 3/24/06), 925 So.2d 771, 2006 WL 1096712, this court affirmed a trial court's judgment vacating its earlier judgment dismissing a suit based on abandonment, thereby effectively reinstating the suit. In that case, the plaintiff had sent a letter to the trial court requesting a scheduling conference in compliance with the procedure utilized by that particular court. We concluded "the trial court was not manifestly erroneous in finding that this action was made pursuant to the procedures followed by the trial court and that [plaintiff] took a step in the prosecution pursuant to LSA-C.C.P. art. 561.”

      . In its extended discussion of abandonment in Clark, the supreme court included sections on both the construction standards and policy considerations attendant in abandonment analysis. From these, it is clear that the intent and substance of a party’s actions matter far more than technical formalities. See Clark, 2000-3010 at p. 9, 785 So.2d at 786. Thus, the fact the requests herein were made by letters rather than formal motions does not prohibit them from constituting formal actions in the trial court. Indeed, the proper procedure for requesting such a conference expressly required a "request in writing” as opposed to a formal motion. See Uniform Rule 9.14(b).

      / The Clark opinion notes that the purpose underlying Article 561’s requirements that steps taken be part of the record is to protect defendants through sufficient notice of a plaintiff’s actions. Clark, 2000-3010 at p. 17, 785 So.2d at 790. In addition to being filed into the record, it is noteworthy that both requests in this case provided the clerk’s office with notice information regarding the attorneys for each of the parties. Significantly, Catfish Queen does not argue that it received no notice in January 2003 and August 2005 that the Hidalgos clearly intended to move their case along and took action to do so.


source: Caselaw Access Project

author: McClendon, j.

license: Public Domain

text:
    Succession of Beverly L. WHITE.
    No. 2006 CA 1002.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2007.
    Rehearing Denied June 28, 2007.

      Julian J. Rodrigue, Covington, Counsel for Appellee Succession of Beverly L. White, Lois White King, Executrix.
    Frederick S. Ellis, William J. Dutel, Covington, Counsel for Appellants Suzanne White Davis, Mary Juliette White Chappo, John de Brousse White, Lauretta White Bordelon, Melissa White Trahern, Melinda White Greer and Joy Noel White Moore.
    Before: PARRO, GUIDRY, and McClendon, jj.
   McClendon, j.

|Jn this succession case, some of the deceased’s nieces and nephews, Suzanne White Davis, Mary Juliette White Chappo, John de Brousse White, Lauretta White Bordelon, Melissa White Trahern, Melinda White Greer, and Joy Noel White Moore (heirs), appeal the trial court’s (1) denial of their petition to annul the December 2002 probated testament (attached as appendix A) and (2) declaration of the July 1994 document (attached as appendix B) as a valid will and testament of Beverly L. White. After a thorough review of the record before us, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The decedent, Ms. White, died on February 26, 2004. A succession was opened, and a petition for probate of the olographic testament dated December 2002 was filed on March 22, 2004. The only instruction provided in the 2002 document was the naming of Mrs. Lois White King, the deceased’s sister, as executrix. Subsequently, the trial court appointed Mrs. King as the executrix, and the 2002 document was recognized as a valid testament.

While going through papers at the decedent’s home, the executrix’s husband and one of the succession attorneys found the 1994 document and submitted it for probate. The 1994 document was in the form of an olographic will. See LSA-C.C. art. 1575. It was dated and signed by the Ms. White at the beginning and the end of the three page document. On the reverse side of the last page, the testatrix wrote a note, which was not accompanied by a signature or date.

The heirs, who were named in the 1994 document, filed a petition to annul the probated 2002 testament, and filed an opposition to the probate of the 1994 document. After a hearing, which included testimonial evidence, |athe trial court signed a judgment that denied the heirs’ petition to annul the 2002 testament. In a separate judgment, the trial court declared the 1994 document to be a valid last will and testament of the deceased. The heirs appealed.

On appeal, the heirs primarily allege that the 1994 testament does not contain the requisite testamentary intent, and, for that reason, the document was not a valid testament. In the absence of a valid last will and testament disposing of the estate, Ms. White died intestate, and the heirs would possibly inherit a larger share of the estate. As to the 2002 testament naming Mrs. King as executrix, the heirs argue that it did not mention the 1994 document and was not a codicil to the earlier document. Thus, they argue that the two documents cannot be read together as one will or testament.

APPLICABLE LEGAL PRECEPTS

“A donation mortis causa (in prospect of death) is an act to take effect, when the donor shall no longer exist, by which he disposes of the whole or a part of his property, and which is revocable.” LSA-C.C. art. 1469. To be a valid testament or will, á document must meet the requisites of form and contain testamentary intent, which is to say, “it must, by its own language, show on its face that it purports to dispose of the property of the testator on his death.” Succession of Shows, 158 So.2d 293, 295 (La.App. 1 Cir.1963), affirmed, 246 La. 652, 166 So.2d 261 (1964); Succession of Hammett, 183 So.2d 416, 417 (La.App. 4 Cir.), writ refused, 249 La. 66, 184 So.2d 735 (1966); see LSA-C.C. arts. 1570 & 1573.

“The intent of the testator controls the interpretation of his testament.” LSA-C.C. art. 1611 A. The preference of interpretation is the one that gives effect. LSA-C.C. art. 1612. “[T]he first and natural impression conveyed to the mind on reading the will as a whole is entitled to great weight. The testator is not supposed to be propounding riddles, but rather to be conveying his ideas to the best of his ability so as to be correctly understood at first view.” Carter v. Succession of Carter, 332 So.2d 439, 442 (La.1976). If two possibilities present themselves, the document must be read to carry out the “wishes” of the testator, not defeat them; to support testacy, not intestacy. Succession of Reeves, 393 So.2d 166, 171 (La.App. 1 Cir.1980), application denied, 398 So.2d 529 (La.1981); Carter, 332 So.2d at 442. With a document that is written without aid of counsel, the “law is indulgent in such cases. It exempts language from technical restraint and obeys the clear intention however informally conveyed.” Carter, 332 So.2d at 442; see LSA-C.C. 1612. If a later testament neither expressly nor tacitly revokes a prior one, both must be read together to fulfill the intent of the testator. Succession of Stallings, 197 La. 449, 1 So.2d 690, 692-94 (1941); Reeves, 393 So.2d at 170-72; Succession of Tranchina, 144 So.2d 778, 781 (La.App. 4 Cir.1962); see Succession of Lee, 02-189, pp. 3-4 (La.App. 5 Cir. 10/29/02), 831 So.2d 477, 479.

ANALYSIS

The heirs’ reliance on various cases ignores the factual differences in those cases and the case on appeal. For example, in Succession of Maguire, 228 La. 1096, 85 So.2d 4, 5 (1955), the testator directed that a charitable trust be established to help young girls, and then, in addition, stated that she “would like the trustees to give [my cousin] every month the rent of one of the tenant houses or the equivalent-The trustees to decide the amount.” Thus, the court concluded that considering the testament as a whole, the use of the term “would like,” as a request to a third party with discretion over the amount of the gift, does imply a hope or “precatory suggestion.” Maguire, 85 So.2d at 6. In the instant case, there is no third party trust or trustees with |ssuch discretion placed between the testatrix and the dispositions. In Succession of Diaz, 617 So.2d 34, 35 (La.App. 4 Cir.1993), the testator stated that, “I further wish my sister (one and only) to give to Dot the sum of $45,000 for my father’s house and a fair price, $10,000 for my truck should she desire to purchase this for my nephew.” After noting that there is no rule that the word “wish” is always interpreted as precatory, the fourth circuit found that the provision at issue “merely expresses the desire of the decedent for his sister to give certain sums to” another. Diaz, 617 So.2d at 36. The Diaz court then found the testator’s language to be “not dispositive, but merely precatory and without legal effect.” Id. Again, the instant case does not concern a request to a third party with discretion to arrange a gift from the testator.

The determination of testamentary intent does rest solely on a testator’s choice to use the words “would like” or “wish.” There is no fixed rule that particular words should be interpreted as a “precatory suggestion,” rather than “a mandate of the testator.” Diaz, 617 So.2d at 36. The document must be read as a whole. Carter, 332 So.2d at 442; Reeves, 393 So.2d at 171. Courts themselves have employed a possibly precatory word, “wishes,” to represent the testator’s intent to dispose of his property in an acceptable manner. In Succession of Maquar, 2003-0041, p. 9 (La.App. 4 Cir. 6/4/03), 849 So.2d 773, 778, writ denied, 2003-1873 (La.11/21/03), 860 So.2d 544, the appellate court examined the legislative changes to testamentary formalities when the testator is impaired. The court stated that “the legislature wanted to insure that if one adhered to the codal requirements, he or she could be assured, ... that his testamentary wishes would be honored in accordance with the language contained in the testament.” (Emphasis added.) In Succession of Boyter, 99-0761, p. 15 (La.1/7/00), 756 So.2d 1122, 1133, the supreme court noted that a change in the law, regarding a forced heir’s right of reduction, allowed testators to evaluate whether their “wishes” would be “carried out upon their deaths or whether they need to execute new testaments.” It follows that words such as “like” or “wishes” may be dispositive.

The 1994 document begins with the location of various assets, and then provides information on how the assets are to be disposed. Although the testatrix in this case did not use well known legal terms, such as “bequest” or “bequeath,” the language of the document, when read as a whole, exemplifies more than mere hopes or an inventory of assets. Compare Hen dry v. Succession of Helms, 557 So.2d 427 (La.App. 3 Cir.), writ denied, 560 So.2d 8 (La.1990) (Unlike Hendry, the document in question in the case before us does not contain a listing of debts or bills, or testimony that the document was given to an attorney as a guide for the drafting of a subsequent will.). Ms. White may have used the term, “would like” for some of the dispositions, but on its face, by its own language, the intent of the document was to dispose of Ms. White’s assets, if any were left after her illness. In one of the dispositions, she wrote, “I’d like each niece and nephew ... to have a thousand dollars each — (15 in all).” She went on to state that: “The rest divided. Note: All this may have to go for Dr. — Hospitals—I pray not!” On the last page, she named two churches and wrote: “1,000 each out of savings (if there is any left!).”

Our final consideration on the validity of the 1994 document is a notation inscribed on the reverse side of the third page. Without dating or signing the reverse side, the deceased wrote the following note:

Listing of assets-Temporary only-in case of emergency,
|7Bank Box Hibernia
No. 92
Very little in box

Based on the note’s language, the heirs argue that the notation clearly shows that the 1994 document was not meant to be a testamentary disposition of assets, and was only a listing of assets. The language, however, can be interpreted in many ways. If the note is read as two separate statements, the first could be a denomination of the three pages as only a temporary listing of assets, and the second could be read as a note to the family that very little was in a particular bank box. On the other hand, the notation may be read as one statement. Through the one statement, the deceased may have been directing her family to look for a “temporary” listing of assets in her bank box. Or, she may have been reminding herself to update her list of assets if her savings were substantially depleted by medical costs.

Certainly, the notation is not contained within the dated and signed pages, and is susceptible of more than one interpretation. Given multiple interpretations of writings, a court must opt for the one that grants testacy and turns away intestacy. Carter, 332 So.2d at 422; Reeves, 393 So.2d at 171; see LSA-C.C. 1612. Thus, based on these particular facts, we find no error in the trial court’s refusal to accept the meaning the heirs attributed to the writing. See LSA-C.C. art. 1575 (court has discretion to consider or not the testator’s notes written after the signature).

Therefore, after reviewing the language of the whole document, in light of the applicable codal provisions and the jurisprudential guidelines, we see no error in the trial court’s finding that the deceased intended to dispose of her assets in the 1994 document. Having found testamentary intent, the trial court did not err in its recognition of the 1994 document as a valid last will and testament.

|sThe 2002 document, whether meant to function as a continuation or a codicil, does not explicitly or implicitly revoke any of the provisions of the 1994 testament. It only adds a provision naming an executrix. From these facts, we cannot say that the trial court erred in finding that the two testaments, read together, best fulfilled the testatrix’s intent. See Reeves, 393 So.2d at 171. Thus, the trial court did not err in denying the heirs’ petition to annul the 2002 testament.

CONCLUSION

For these reasons, we affirm the judgments appealed. The costs of the appeal are assessed to the appellants, Suzanne White Davis, Mary Juliette White Chappo, John de Brousse White, Lauretta White Bordelon, Melissa White Trahern, Melinda White Greer, and Joy Noel White Moore.

AFFIRMED.

      . In addition, we find no error in the trial court’s denial of the heirs’ motions for new trial. The record contains no support for the heirs’ claim of relevant new evidence that could not have been discovered before the hearing. The heirs also complain that the judgment on appeal is invalid in its failure to reflect the agreements by opposing counsel to dismiss other pending matters before the court and the interlocutory rulings made by the court on the day of the hearing. Under the facts in the record before us, we find no such invalidity in the judgment on appeal, and we were not directed to any provision of law requiring all rulings and party agreements made on a given day to be included in one final judgment. For those matters requiring a written judgment before appeal, the heirs may still petition the trial court for a signed judgment.


text:
    Darryl SAMAHA, Husband of/and Karman Samaha v. David J. RAU, M.D.
    No. 2006 CA 1561.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2007.
    Rehearing Denied Aug. 3, 2007.

      Carl T. Conrad, Barry J. Boudreaux, Henderson, Reilly & Boudreaux, Houma, Counsel for Defendant/Appellee David J. Rau, M.D.
    Karen Wiedemann, Wiedemann & Wied-emann, New Orleans, Counsel for Plaintiffs/Appellants Darryl Samaha & Karman Samaha.
    Before: PARRO, GUIDRY, and McClendon, jj.
   McClendon, j.

In this medical malpractice action, the plaintiffs appeal the trial court’s grant of summary judgment in favor of the defendant doctor. For the reasons that follow, we reverse the judgment of the trial court, and remand.

FACTS AND PROCEDURAL HISTORY

On February 28, 2003, the plaintiffs, Darryl Samaha, husband of/and Karman Samaha, filed this suit for damages against the defendant, Dr. David J. Rau, alleging that on October 27, 1998, Mrs. Samaha was admitted to Terrebonne General Medical Center where she underwent a left thyroid lobectomy and isthmusectomy performed by Dr. Rau. Plaintiffs assert that Mrs. Samaha’s parathyroid gland was negligently removed and/or damaged in the surgery, resulting in hypoparathyroidism and complications therefrom. The lawsuit was instituted after the matter was submitted to a medical review panel, which, on December 2, 2002, concluded that there was no deviation from the standard of care by Dr. Rau.

On July 27, 2005, Dr. Rau filed for summary judgment contending that plaintiffs lacked the necessary expert medical testimony to support their claims against the defendant. Plaintiffs filed an opposition to the motion, and the matter was heard on December 9, 2005, at which time summary judgment was granted. Judgment was signed on December 16, 2005, and plaintiffs have appealed.

DISCUSSION

In their sole assignment of error, plaintiffs assert that the opinion of the medical review panel, unsupported by testimony or affidavits, is not competent evidence to carry the mover’s burden to show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. We agree.

Is An appellate court reviews a trial court’s decision to grant a motion for summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750; Boland v. West Feliciana Parish Police Jury, 03-1297, p. 4 (La.App. 1 Cir. 6/25/04), 878 So.2d 808, 812, writ denied, 04-2286 (La.11/24/04), 888 So.2d 231. A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. The motion should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966 B; Boland, 03-1297 at p. 4, 878 So.2d at 812.

On a motion for summary judgment, if the moving party will not bear the burden of proof at trial on the matter before the court on the motion, the moving party must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. If the adverse party then 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, and summary judgment must be granted. LSA-C.C.P. art. 966 C(2); Boland, 03-1297 at p. 4, 878 So.2d at 813.

Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Craig v. Bantek West, Inc., 04-0229, p. 7 (La.App. 1 Cir. 9/17/04), 885 So.2d 1241, 1245.

|4A plaintiff in a medical malpractice action must establish the standard of care applicable to the doctor, a violation by the doctor of that standard of care, and a causal connection between the doctor’s alleged negligence and the plaintiffs injuries resulting therefrom. LSA-R.S. 9:2794 A; Pfiffner v. Correa, 94-0924, p. 8 (La.10/17/94), 643 So.2d 1228, 1233. To meet this burden of proof, the plaintiff generally is required to produce expert medical testimony. Pfiffner, 94-0924 at p. 9, 643 So.2d at 1234; Fagan v. LeBlanc, 05-1845, p. 7 (La.App. 1 Cir. 2/10/06), 928 So.2d 576, 582.

In this matter, Dr. Rau supported his motion with a certified true copy of the medical review panel opinion (with the correcting affidavit of the attorney chairman). However, the opinion, by law, is not conclusive that Dr. Rau complied with the standard of care required of him. See LSA-R.S. 40:1299.47 H; Carter v. Hebert, 05-1986, p. 4 (La.App. 1 Cir. 9/20/06), 943 So.2d 1191, 1193; Simmons v. Berry, 98-0660, p. 7 (La.App. 1 Cir. 12/22/00), 779 So.2d 910, 915.

Further, we have held that LSA-R.S. 40:1299.47 H “does not in any way broaden the avenues available to medical malpractice litigants utilizing summary judgment proceedings, unless the deposition of a medical doctor who served on the medical review panel is taken or his opinion is put in the form of a sworn affidavit. If presented in an affidavit form or by deposition, the expert’s opinion may be admissible if it meets the standards of Daubert-Foret.f Carter, 05-1986 at p. 4, 943 So.2d at 1193 (quoting Simmons, 98-0660 at pp. 7-8, 779 So.2d at 916).

Dr. Rau did not properly support his motion for summary judgment with either an affidavit or deposition from an expert medical provider to prove that his medical treatment of Mrs. Samaha was not below the applicable standard of care. Without such evidence, we conclude that Dr. Rau did not meet his initial burden of showing that he was entitled to summary judgment as a matter of law. LSA-C.C.P. art. 966 B; Carter, 05-1986 at p. 4, 943 So.2d at 1193. Therefore, the burden never shifted to plaintiffs to require them to show support for their claims. See LSA-C.C.P. art. 966 C(2). Accordingly, the trial court erred in granting summary judgment in favor of Dr. Rau, and we reverse the judgment of the trial court.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting summary judgment in favor of Dr. Rau is hereby reversed, and this matter is remanded to the trial court for further proceedings. Costs of this appeal are assessed against Dr. Rau.

REVERSED AND REMANDED.

      . LSA-R.S. 40:1299.47 H provides, in pertinent part:
      Any report of the expert opinion reached by the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law, but such expert opinion shall not be conclusive and either party shall have the right to call, at his cost, any member of the medical review panel as a witness. If called, the witness shall be required to appear and testify.

      . Daubert v. Metrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and State v. Foret, 628 So.2d 1116 (La.1993).


author: McDonald, j.

text:
    DISPLAY SOUTH, INC. v. EXPRESS COMPUTER SUPPLY, INC.
    No. 2006 CA 1137.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2007.

      John P. Wolff, III, Christopher K Jones, Philip Bohrer, Keith D. Jones, Baton Rouge, for Plaintiff/Appellee Display South, Inc.
    Eugene R. Groves, Preston J. Castille, Jr., Amy Groves Lowe, Baton Rouge, for Defendant/Appellant Express Computers Supply, Inc. and Travelers Indemnity Insurance Company of Connecticut.
    Before: CARTER, C.J., WHIPPLE and McDonald, jj.
   McDonald, j.

LFACTS AND PROCEDURAL BACKGROUND

In January 2003, plaintiff, Display South, Inc. (Display), filed suit for damages and injunctive relief, on behalf of itself and all others similarly situated, against Express Computer Supply, Inc. (Express) for sending unsolicited telephone facsimile messages in violation of both La. R.S. 51:1745 et seq. and 47 U.S.C. § 227, the Telephone Consumer Protection Act of 1991 (TCPA). The suit was subsequently amended to name Travelers Property Casualty Insurance Company, Express’s insurer, as a defendant. A second supplemental and amending class action petition deleted paragraphs to remove any causes of action or references to damages under Louisiana law.

The matter was set for a class certification hearing, but was continued on the unopposed motion of Express to allow it to file pre-trial motions. Thereafter, in September 2004, Display filed a motion to reset the class certification hearing. Display also filed a motion in limine to preclude any evidence of an “established business relationship” (EBR) between Express and members of the class as a defense to liability. The hearing was set and continued, and at the next hearing date, the class certification hearing and the motion in li-mine were passed without date.

In March 2005, Express filed a motion for summary judgment asserting that the matter should be dismissed because Express had an “established business relationship” with Display. Express maintained that there is a jurisprudential rule that an established business relationship R(EBR) is a defense that prohibits a finding that a violation of the TCPA has occurred. Therefore, Express argued it was entitled to judgment dismissing the case as a matter of law. The hearing on Express’s motion for summary judgment was on April 11, 2005, and resulted in the trial court’s denial of the motion. The judgment stated:

After considering the evidence, hearing argument of counsel and reviewing pleadings and memoranda on file and in conjunction with the matter brought before this court, and for oral reasons assigned:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED, that defendants, Express Computer Supply Inc.’s and Travelers Indemnity Company of Connecticut’s Motion for Summary Judgment is hereby denied.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that there is no established business relationship exception to liability under the Telephone Consumer Protection Act of 1991 (47 U.S.C. § 227 et seq). The TCPA provides that a fax advertisement may only be sent with the recipient’s prior express invitation or permission[J

Express sought supervisory writs with this court, which were denied with the following language: “Genuine issues of material fact exist that preclude granting summary judgment.”

The hearing on plaintiffs motion for class certification was held in January 2006. Before conducting the hearing, the trial court informed counsel that it intended to hear the pending motion in limine, and then the motion for class certification. Counsel for both parties advised the trial court that they were not prepared to address the motion in limine, and did not think it was necessary for the trial court to rule on the motion regarding the admission of EBR evidence prior to hearing the motion on class certification. Display’s argument was that EBR was not a defense. Express’s position was that the issues in class certification were separate and |4not contingent on the issue of EBR as a defense. After much discussion, the court proceeded with the class certification hearing, expressing its opinion that the EBR issue was moot and the inadmissibility of that evidence was “law of the case” based on the trial court’s previous ruling and the denial of writs by this court. Upon submission of the evidence, testimony and argument, the trial court granted Display’s motion for class certification.

Express filed the instant appeal alleging seven assignments of error:

1. Whether the trial court committed reversible error in certifying a class in this matter based solely on the conclusory allegations set forth in Plaintiffs Petition.
2. Whether the plaintiff met its burden of proof and showed by a preponderance of the evidence that a factual basis exists to justify certification of a class.
3. Whether plaintiff made a prima facie showing that anyone in the purported class received a fax from Express which constituted an unsolicited advertisement.
4. Whether the trial court erred in finding that the class satisfied the commonality requirement pursuant to La. C.C.P. art 591 when individual questions of law and fact predominate over whether any company received an unsolicited fax from Express.
5. Whether the trial court erred in finding that the class satisfied the numerosity requirement pursuant to La. C.C.P. art. 591, when individual questions of fact remain as to whether the alleged recipients had an established business relationship with Express or whether the recipients gave permission to Express to send the faxes.
|fi6. Whether the trial court erred in finding that the class satisfied the typicality requirement pursuant to La. C.C.P. art. 591, when plaintiff made no prima facie showing that other members of the class have claims, the nature of those claims, or a comparison of those claims to plaintiffs claims.
7. Whether the trial court erred in finding that Display is an adequate class representative as required by La. C.C.P. art 591 when plaintiff failed to show that it is nothing more than a defunct company that exists for no other purpose than to pursue this and other similar class action cases.

LAW AND ANALYSIS

Express contends the trial court committed legal error in basing its decision to certify this class solely upon the conclusory allegations in the pleadings. We agree that conclusory allegations of a pleading alone are insufficient to establish the existence of a class. Carr v. GAF, Inc., 97-0838 (La.App. 1st Cir.4/8/98), 711 So.2d 802, 806, writ denied, 98-1244 (La.6/19/98), 721 So.2d 472. However, our review of the record does not support a finding that the trial court relied only on the pleadings in certifying the class or otherwise committed legal error. Therefore, we will review the trial court’s factual findings under the manifest error standard, and will review the trial court’s decision to certify the class using the abuse of discretion standard. Boudreaux v. State, DOTD, 96-0137 (La.App. 1st Cir.2/14/97), 690 So.2d 114, 119.

Express next contends that Display failed to meet its burden of proof to establish a factual basis for entitlement to class certification. Louisiana Code of Civil Procedure article 591 sets forth the prerequisites for maintaining a class action. Paragraph A of that article lists five elements that must be established, which are commonly known as numerosity, commonality, typicality, adequate representation, and objectivity (definability). All of these elements must be present for an action to be properly certified as a class action. Mire v. EatelCorp, Inc., 2002-1705 (La.App.6 1st. Cir.5/9/03), 849 So.2d 608, 613, writ denied, 2003-1590 (La.10/3/03), 855 So.2d 317. The burden to establish these elements is on the party seeking to maintain the class action. In determining whether these elements have been established, the court may consider the pleadings, affidavits, depositions, briefs, exhibits, and testimony presented at a certification hearing. Id. We will address the issue of whether Display met its burden of proof in conjunction with the other assignments of error.

Express’s third assignment of error alleges that Display failed to make a prima facie showing that anyone in the purported class received a fax from Express that constituted an unsolicited advertisement. Express contends that it is clear that the sending of faxes is not a violation of the TCPA; for a violation to occur, an “unsolicited” fax must be received. The clarity of this proposition is asserted to have derived from an interpretation of the statute, recently codified, providing that faxes sent to persons with whom the sender has an established business relationship can be deemed to be invited or permitted by the recipient. We disagree with defendant’s contention and the assertion supporting it for several reasons.

Initially, contrary to Express’s contention, it is not clear to us that the sending of faxes is not a violation of the TCPA. The applicable version of the TCPA provided, in pertinent part, that “It shall be unlawful for any person within the United States ... to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine.” 47 U.S.C. § 227(b)(1)(C). (Emphasis added). Further, we fail to see how this derives from an interpretation (or statute) that exempts from violation of the law faxes sent to persons with whom the sender has an established business relationship. More importantly, even were we to agree with Express’s position on what constitutes a violation of [ 7the statute, we do not agree with its position as to what is required for Display to meet its burden of proof to maintain a class action.

It is not necessary for Display to prove the facts of the underlying cause of action. Class certification is purely procedural. Therefore, the issue at a class certification hearing is whether the class action is procedurally preferable, not whether any of the plaintiffs will be successful in urging the merits of their claims. Singleton v. Northfield Ins. Co., 2001-0447 (La.App. 1st Cir.5/15/02), 826 So.2d 55, 62, writ denied, 2002-1660 (La.9/30/02), 825 So.2d 1200. It is the elements required for class certification that the plaintiff is required to prove.

The class action is a nontraditional litigation procedure permitting a representative with typical claims to sue or defend on behalf of, and stand in judgment for, a class of similarly situated persons when the question is one of common or general interest ■ to persons so numerous as to make it impracticable to bring them all before the court. 1 The purpose and intent of class action procedure is to adjudicate and obtain res judicata effect on all common issues applicable not only to the representatives who bring the action, but to all others who are “similarly situated,” provided they are given adequate notice of the pending class action and do not timely exercise the option of exclusion from the class. Ford v. Murphy Oil U.S.A., Inc., 96-2913, 96-2917, 96-2929 (La.9/9/97), 703 So .2d 542, 544.

The trial court is afforded great discretion in class action certification. Wide latitude must be given the trial court in considerations involving policy matters and requiring an analysis of the facts under guidelines helpful to a determination of the appropriateness of a class action. Unless the trial court has committed manifest error in its factual findings, or has abused its discretion in deciding that class certification is appropriate, its determination Isshould be affirmed. State v. Sprint Communications Company, L.P., 2003-1264, 2003-1265 (La.App. 1st Cir.10/29/04), 897 So.2d 85, 90, writs denied, 2005-1180 (La.12/9/05), 916 So.2d 1056, 2005-1190 (La.12/9/05), 916 So.2d 1057.

All of the elements of paragraph A of La. C.C.P. art. 591 must be present for an action to be properly certified as a class action. If these prerequisites are met, the trial court must make an additional inquiry before the action may be properly certified as a class action. Paragraph B of La. C.C.P. art, 591 provides:

An action may be maintained as a class action only if all of the prerequisites of Paragraph A of this Article are satisfied, and in addition:
(l)The prosecution of separate actions by or against individual member of the class would create a risk of:
(a) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(b) Adjudications with respect to individual members of the class which would as a practical matter be dis-positive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2)The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3)The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superi- or to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to these findings include:
(a) The interest of the members of the class in individually controlling the prosecution or defense of separate actions;
(b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(c) The desirability or undesirability of concentrating the litigation in the particular forum;
(d) The difficulties likely to be encountered in the management of a class action;
(e) The practical ability of individual class members to pursue their claims without class certification;
(f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as |9may be implicated, justifies the costs and burdens of class litigation; or
(4)The parties to a settlement request certification under Subparagraph B(3) for purposes of settlement, even though the requirements of Subpara-graph B(3) might not otherwise be met.

Express contends that the trial court erred in finding that Display had satisfied the requirements of numerosity, commonality, typicality and adequate representation. After thorough review of the record in this case, we find no error on the part of the trial court. An extensive hearing was conducted during which the trial court articulated reasons for its decisions that demonstrated a thorough understanding of the law and policy considerations at issue.

The deposition testimony of Karl Kearney, president of Express, was that Express possessed an ACT database of customers and prospective customers. This database indicated numerous faxes were sent during the pertinent time frame and the trial court determined that they were sent to over 700 potential class members. We find no error in the trial court’s determination of the number of potential plaintiffs and, in fact, find support for this finding.

The court also determined that there are questions of law and fact common to the class. This is an action brought under the Telephone Consumer Protection Act. Any damages are statutorily imposed. The receipt of unsolicited advertisement faxes is common to all the potential class members, and, in fact, defines the class. This is the claim made by Display and is not only typical of the claims of the other class members, but is identical to the claims of the other members.

Express contends that because an established business relationship with the recipient of a faxed advertisement is a defense that precludes a finding of a violation of the law, individual questions predominate over hncommon issues. However, the arguments made in support of their position go to the merits and not to the issue of class certification. A class action is a procedural device and confers no substantive rights. The only issue at the certification hearing is whether the case is one that would benefit from the procedural classification as a class action. Andry v. Murphy Oil U.SA., Inc., 97-0793 (La.App. 4th Cir. 1998), 710 So.2d 1126, 1128-29, writ denied, 98-1158 (La.6/19/98), 720 So.2d 1214. While affirmative defenses should be considered in determining the merits of maintaining the lawsuit as a class action, the fact that some plaintiffs may offer a defense does not prohibit certification of a class. See Mathews v. Hixson Bros., 2002-124 (La.App. 3rd Cir.7/31/02), 831 So.2d 995, 1000, writs denied, 2002-2286, 2002-2305 (La.12/13/02), 831 So.2d 984. Also, if the trial court determines that a defense is available to individual members such that maintenance of the class is no longer feasible, the class can be decertified.

The court also considered and rejected the argument that the named plaintiff was not able to adequately represent and protect the interests of the class. Further, the trial court addressed the issue of adequacy of counsel, pointing to the time, effort, and active participation already expended in the case and concluding that the claim would continue to be vigorously pursued.

We find no error in these findings by the trial court. We also find that the court considered the additional requirements of La. C.C.P. art. 591(B) and found that common questions of fact and law predominate over individual questions and the class action procedure was superior to other available methods of handling the case.

h, CONCLUSION

We find no manifest error in the factual findings by the trial court; nor do we find an abuse of discretion in the decision to certify the class. Therefore, the judgment appealed is affirmed. Costs are assessed to Express Computer Supply, Inc.

AFFIRMED.

      . In 2005, Congress amended the TCPA. Relevant to this matter, is the addition of the following quoted language to Section (b)(1)(C) that prohibits sending an unsolicited advertisement to a telephone facsimile machine, "unless — the unsolicited advertisement is from a sender with an established business relationship with the recipient... ”

      . Display South, Inc. v. Express Computers Supply, 2005-1124 (La.App. 1st Cir.10/6/05) (Unpublished writ action).

      . Under the "law of the case” doctrine, an appellate court generally will not, on a subsequent appeal, reconsider it's earlier ruling in the same case. But this discretionary doctrine only applies to parties and issues that were actually presented and decided by the appellate court. Mire v. Eatelcorp, Inc. 2004-2603 (La.App. 1st Cir. 12/22/05), 927 So.2d 1113, 1117, writ denied, 2006-0209 (La.4/24/06), 926 So.2d 549. Generally, when an appellate court considers arguments made in supervisory writ applications, the court's disposition on the issue considered becomes "law of the case” foreclosing re-litigation of that issue either at the trial court on remand or in the appellate court on a later appeal. However, the denial of a writ application creates a different situation. A denial of supervisory review is merely a decision not to exercise the extraordinary powers of supervisory jurisdiction, and does not bar reconsideration of, or a different conclusion on, the same question when an appeal is taken from a final judgment. Cotton v. Gaylord Container, 96CW1958, 96CW2029, 96CW2049 (La.App. 1st Cir.3/27/97), 691 So.2d 760, 763, writ denied, 97-0800 (La.4/8/97), 693 So.2d 147. In this case, the denial of supervisory writs addressed only the issue of the summary judgment and determined that it was precluded by material issues of fact. This court did not consider the issue of whether an EBR constitutes a defense to a violation of the TCPA, and the exclusion of evidence of an EBR is not "law of the case.” Thus, the trial court may certainly hear the motion in limine on this issue and reach whatever conclusion the evidence warrants.


author: GUIDRY, J.

text:
    R.G. CLAITOR’S REALTY v. Bill RIGELL and GJR, Inc. D/B/A Eagle Travel Consultants.
    No. 2006 CA 2336.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2007.

      Richard A. Aguilar, Edward L. Fenasci, Jean-Paul Perrault, Ingrid M. Kemp, New Orleans, Counsel for Plaintiff/lst Appel-lee/2nd Appellant R.G. Claitor’s Realty.
    Thomas. M. Lockwood, Baton Rouge, Counsel for Defendant GJR, Inc.
    A. Gregory Rome, Baton Rouge, Counsel for Defendant/lst Appellant/2nd Appel-lee Bill Rigell.
    Before: PARRO, GUIDRY, and McClendon, jj.
   GUIDRY, J.

lain this action on a lease, defendant, Bill Rigell (Rigell), appeals the trial court’s judgment awarding plaintiff, R.G. Claitor’s Realty (Claitor Realty), $12,428.55 in attorney fees and $2,772.72 in costs and expenses, plus interest. Additionally, Claitor Realty appeals the trial court’s judgment, seeking an increase in the amount of attorney fees and requesting additional attorney fees for work performed on appeal. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On November 30, 1994, Rigell, for GJR, Ltd. as lessee, and Jon F. Claitor, for Claitor Realty as lessor, executed a lease agreement regarding office space located on Acadian Thruway in Baton Rouge, Louisiana. Thereafter, on June 12, 1998, Claitor Realty filed suit on the lease, naming Rigell and GJR, Inc. d/b/a Eagle Travel Consultants (GJR) as defendants. In its suit, Claitor Realty alleged GJR breached the lease agreement by vacating the premises prior to the expiration of the lease term and accordingly owed Claitor Realty for unpaid rent, common area maintenance charges, late fees, and attorney fees. Claitor Realty also asserted that Rigell was personally liable for the amount owed because at the time- of the execution of the lease agreement, GJR was not incorporated. Rigell and GJR answered the petition, with GJR asserting a reconventional demand and claiming that Claitor Realty breached the lease agreement by disturbing GJR’s peaceful possession of the lease premises.

On January 16, 2003, Rigell filed a motion for summary judgment, asserting that he was not personally liable for the lease obligation of GJR because only GJR bound itself as lessee, and the parties had agreed to waive any requirement for a personal guarantee on the lease. The trial court subsequently denied Rigell’s motion. Thereafter, on December 8, 2005, Claitor Realty filed a motion for partial 13summary judgment, asserting that there was no genuine issue of material fact in dispute that GJR breached the lease agreement and Rigell was personally liable under the lease. Accordingly, Claitor Realty requested that the court adjudge Rigell liable for $46,900.00 in unpaid rent and common area maintenance charges, $2,814.00 in late charges, attorney fees, and interest. Claitor Realty also sought dismissal of GJR’s reconventional demand, asserting that there was no evidence to support the facts that GJR alleged underlie its claim.

A hearing on the motion for partial summary judgment was set for March 20, 2006. On March 16, 2006, Rigell’s attorney filed a motion to continue the hearing, asserting that he had been unable to prepare an opposition to the motion for partial summary judgment because of unanticipated absences of support staff in his firm. By the March 20, 2006 hearing, neither Rigell nor GJR had filed an opposition. The trial court denied Rigell’s request for a continuance and, in a judgment dated April 24, 2006, granted Claitor Realty’s motion for partial summary judgment, dismissing GJR’s reconventional demand with prejudice and entering judgment against Rigell in the principal amount of $49,714.20, together with judicial interest, and attorney fees and costs to be fixed upon subsequent motion by Claitor Realty. Thereafter, Rigell filed a motion for sus-pensive appeal of the April 24, 2006 judgment.

On May 19, 2006, Claitor Realty filed a motion to establish the amount of attorney fees, costs, and expenses due and to designate the judgment as final. Following a hearing, the trial court signed a judgment on September 14, 2006, in favor of Claitor Realty and against Rigell, awarding Claitor Realty $12,428.55 in attorney fees, plus $2,772.72 in costs and expenses, and ordering that this judgment, and the judgment dated April 24, 2006, be declared final, appealable [ ¿judgments as contemplated by La. C.C.P. art. 1915 and that there was no just reason for delay of the appeal of these judgments. On October 13, 2006, Rigell filed a motion and order for suspensive appeal of the September 14, 2006 judgment. Additionally, Claitor Realty filed a motion and order for devolutive appeal of the September 14, 2006 judgment, requesting an increase in the attorney fees award and also requesting additional attorney fees for work performed on appeal.

Thereafter, Claitor Realty filed a motion to dismiss Rigell’s appeal of the September 14, 2006 judgment for his failure to post the required suspensive appeal bond, and also filed, out of an abundance of caution, an answer to Rigell’s appeal requesting additional attorney fees for work performed on appeal. This court, on December 19, 2006, issued a rule to show cause ex propio motu as to why the answer filed by Claitor Realty should not be dismissed pursuant to La. C.C.P. art. 2133. Claitor Realty’s motion to dismiss and this court’s show cause order were referred to the merits of this appeal.

DISCUSSION

Rigell’s Appeal

As stated above, Claitor Realty filed a motion to dismiss Rigell’s suspen-sive appeal from the September 14, 2006 judgment for failure to post the required suspensive appeal bond. In a suspensive appeal, the appellant must file a petition for appeal and furnish the security within the delay allowed in La. C.C.P. art. 2123. Wright v. Jefferson Roofing, Inc., 93-1217 (La.1/14/94), 630 So.2d 773, 775. When the appellant fails to timely furnish the security required for a suspensive appeal, the right vests in the appellee to obtain dismissal of the suspensive appeal and to secure the right to execute on the judgment. Blue, Williams & Buckley v. Brian Investments, Ltd., 96-1451, p. 5 (La.App. 1st Cir.6/20/97), 706 So.2d 999, 1002, writ denied, 97-2192 (La.11/21/97), 703 So.2d 1311. However, the suspensive appeal is not invalid merely because the appellant does not timely furnish security. Rather, this failure merely constitutes an irregularity or defect imputable to the appellant, which may form a basis for the appellee to move for dismissal of the suspensive appeal under La. C.C.P. art. 2161. See Blue, Williams & Buckley, 96-1451 at p. 5, 706 So.2d at 1002.

Since the elimination of the requirement of a bond for devolutive appeals, the courts have consistently held that this defect is not jurisdictional. Thus, where the appellant has failed to file the required bond, the suspensive appeal should be converted to a devolutive appeal, as long as the appellant has met those requirements. Clement v. Graves, 04-1831, p. 6 (La.App. 1st Cir.9/28/05), 924 So.2d 196, 200.

In the instant case, the judgment at issue was signed on September 14, 2006. Rigell filed his motion for suspensive appeal on October 13, 2006, which the trial court granted on October 16, 2006. At the time this case was submitted for decision on appeal, the records in the trial court indicated that Rigell had not posted the required security with regard to this sus-pensive appeal. Accordingly, while Rigell has not filed the security necessary to maintain his suspensive appeal, he has met the requirements for a devolutive appeal. Therefore, Claitor Realty’s motion to dismiss is granted insofar as it seeks to dismiss Rigell’s suspensive appeal; however, Rigell’s appeal is maintained as a devolu-tive appeal. See Clement, 04-1881 at p. 9, 924 So.2d at 202.

On appeal, Rigell asserts that the trial court erred in adjudging him personally liable for the attorney fees, costs, and expenses owed to Claitor Realty. However, the issue of personal liability was determined in the April 24, 2006 | ¿judgment, which this court reviewed in a separate opinion, R.G. Claitor’s Realty v. Rigell, 2006-1629 (La.App. 1st Cir.5/4/07), 961 So.2d 469, 2007 WL 1300239, and found no error in the trial court’s determination that Rigell was personally liable for the obligations under the lease. Additionally, the September 14, 2006 judgment only addressed the amount of attorney fees, costs, and expenses owed to Claitor, Realty. Therefore, to the extent that this court has already upheld the trial court’s determination regarding personal liability, and Rigell does not raise any additional argument with respect to the trial court’s September 14, 2006 judgment awarding Claitor Realty attorney fees, costs, and expenses, we find Rigell’s assignment of error to be without merit.

Further, pursuant to the rule to show cause issued by this court, we dismiss Claitor Realty’s answer to the appeal. When an appellee' appeals from the trial court’s judgment or answers an appeal, he preserves his right to seek additional attorney fees for work performed on appeal. See La. C.C.P. art. 2133; Parfait v. Gulf Island Fabrication, Inc., 97-2104, p. 18 (La.App. 1st Cir.1/6/99), 733 So.2d 11, 25; Williams v. Louisiana Indemnity Co., 26,887, p. 6 (La.App. 2nd Cir.6/21/95), 658 So.2d 739, 743. Because Claitor Realty separately appealed from the trial court’s judgment and requested additional attorney fees for work performed on appeal, it did not need to answer the appeal to preserve such a claim. Accordingly, Claitor Realty’s answer to Rigell’s appeal is dismissed.

Claitor Realty’s Appeal

In its appeal from the trial court’s judgment, Claitor Realty asserts that the trial court erred in failing to include interest in the calculation of attorney fees on the main demand and also erred in failing to award attorney fees for defending against GJR’s reconventional demand. Additionally, Claitor Realty seeks attorney fees for work performed on appeal.

|7The lease agreement at issue specifically authorizes the payment of attorney fees. A paragraph entitled “Attorney Fee” states:

Should an attorney be engaged by Lessor to enforce payment of the rent due under this lease or to protect any of the interest of the Lessor hereunder, with or without judicial proceedings, Lessee agrees to pay Lessor the reasonable fee of such attorney, which fee is hereby fixed, if the collection of money is involved, at 25% of the amount of such money, such fee in no event to be less than $500.00 and Lessee also agrees to pay all court costs and other expenses incurred by Lessor. Lessee shall pay Lessor’s reasonable attorney’s fee incurred in connection with Lessee’s request for Lessor’s consent to assign, sublet or in connection with any other act which Lessee proposes to do and which require Lessor’s consent.

The trial court awarded Claitor Realty $12,428.55 in attorney fees, which represents twenty-five percent of $49,714.20, the principal amount awarded. Claitor Realty, however, asserts that the calculation of attorney fees should have also included interest.

The plain language of the attorney fee provision, as outlined above, clearly does not mention interest. Rather, it simply states that if the collection of money is involved, the attorney fee shall be fixed at twenty-five percent of the amount of “such money.” Based on the language of this provision, we conclude that “such money” in the instant case includes the amounts Claitor Realty claimed for unpaid rent, common area maintenance charges, and late fees, which represents the principal amount awarded of $49,714.20.

Such an interpretation of the lease agreement is supported by this court’s opinion in Claitor v. Delahoussaye, 02-1632, pp. 14-15 (La.App. 1st Cir.5/28/03), 858 So.2d 469, 480, writ denied, 03-1820 (La.10/17/03), 855 So.2d 764, wherein we interpreted the same attorney fee provision at issue in the instant case and determined that “the clear and unambiguous language of the lease agreement fixes the [attorney fees at twenty-five percent] of the amount of money awarded to plaintiff.” In Claitor, this court went on to limit the award for attorney fees to twenty-five percent of the total amount awarded for rent and damages, which was exclusive of interest. Claitor, 02-1632 at pp. 3 and 15, 858 So.2d at 473 and 481. Accordingly, we find that based on the unambiguous language of the attorney fee provision, the trial court was correct in limiting the award of attorney fees to twenty-five percent of the principal amount awarded, exclusive of interest. See also SBS-South College Medical Center v. Trahan, 505 So.2d 969, 972 (La.App. 3rd Cir.), writ denied, 508 So.2d 827 (La.1987).

Claitor Realty also asserts that the attorney fee provision provides for recovery of additional attorney fees it incurred in defending against GJR’s reconventional demand. In support of this argument, Claitor Realty directs this court’s attention to the portions of the attorney fee provision providing for an award of a reasonable attorney fee in the event the lessor has to engage an attorney to “protect any of [its] interest.” According to Claitor Realty, this provision provides for an additional basis for recovery of attorney fees when it has to engage an attorney to protect its interests other than the collection of money. Therefore, because Claitor Realty incurred attorney fees in defending the reconventional demand to protect its interest under the lease, it contends it is entitled to a reasonable fee in addition to the twenty-five percent already awarded on the main demand.

In raising this argument, Claitor Realty does not particularize what interest it was protecting. Presumably, because the re-conventional demand alleged that Claitor Realty disturbed GJR’s peaceful possession of the lease premises and accordingly, breached the lease agreement, it was protecting its interest in showing that it did not breach the agreement and, therefore, was entitled to the unpaid rent, common area maintenance charges, and late fees that it claimed. Therefore, the ultimate interest it sought to protect was the same interest for which it already received attorney fees — the collection of money. Accordingly, we find no error in the trial court’s determination that under the facts of this case, the attorney fee | flprovision of the lease agreement does not provide for additional attorney fees for Claitor Realty’s defense of the reconventional demand.

Alternatively, Claitor Realty asserts it is entitled to additional attorney fees for defense of GJR’s reconventional demand under the indemnity provision of the lease agreement. The indemnity provision provides, in part:

Lessee shall indemnify and hold harmless Lessor from and against any and all claims arising from Lessee’s use of the premises, or from the conduct of Lessee’s business or from any activity, work, or things done, permitted or suffered by Lessee in or about the premises or elsewhere and shall further indemnify and hold harmless Lessor from and against any and all claims arising from any breach or default in the performance of any obligation on Lessee’s part to be performed under the terms of this lease, or arising from any negligence of the Lessee, or any of Lessee’s agents, contractors, or employees and from and against all costs, attorney’s fees, expenses and liabilities incurred in the defense of any sub-Lessee upon notice from Lessor shall defend the same at Lessee’s expense by counsel satisfactory to Lessor.

While this provision does indicate that the lessee is to indemnify the lessor under certain circumstances, we agree with the trial court that it is a stretch to extend this indemnity to a situation where, as alleged here, the lessor interfered with the lessee’s peaceful possession of the lease premises. Such an interpretation would render lessee’s enforcement rights under the lease agreement meaningless, as it would then be required to indemnify lessor for exercising those rights. See La. C.C. arts.2050 and 2053. Accordingly, we find no error in the trial court’s determination that under the facts of this case, the indemnity provision does not provide for attorney fees for Claitor Realty’s defense of the reconventional demand.

|inFinally, we address Claitor Realty’s request for additional attorney fees for work performed on appeal. As stated above, Claitor Realty sought review in this court primarily of the September 14, 2006 judgment, requesting an increase in the amount of attorney fees awarded for work performed in the trial court. However, because we have determined that the trial court did not err in its award of attorney fees, we decline to award Claitor Realty any additional attorney fees for work performed on this appeal.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court. Additionally, Rigell’s suspensive appeal is dismissed, but it is converted to a devolutive appeal. Further, pursuant to this court’s rule to show cause, Claitor Realty’s answer to the appeal is dismissed. All costs of this appeal are to be borne by Bill Rigell.

MOTION TO DISMISS SUSPENSIVE APPEAL GRANTED BUT DEVOLU-TIVE APPEAL MAINTAINED; ANSWER TO APPEAL DISMISSED; JUDGMENT AFFIRMED.

      . GJR, Ltd., as referenced in the lease agreement, was never formed; rather, GJR, Inc. was incorporated on February 3, 1995.

      . This appeal is the subject of R.G. Claitor's Reality v. Rigell, 2006-1629 (La.App. 1st Cir.5/4/07), 961 So.2d 469, 2007 WL 1300239, also decided this date. The motion for appeal states that “defendants” request an appeal from the April 24, 2006 judgment; however, only Rigell appears as an appellant before this court.

      . Again, the motion for appeal states that “defendants” request an appeal from the September 14, 2006 judgment; however, Rigell is the only defendant appearing as an appellant before this court.

      . As indicated previously, Rigell also suspen-sively appealed from the trial court's April 24, 2006 judgment, which is the subject of a separate opinion. Rigell posted the required security for that appeal, and accordingly, Claitor Realty does not seek dismissal of that suspensive appeal.

      . Louisiana Civil Code article 2050 provides:
      Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.
      Louisiana Civil Code article 2053 provides:
      A doubtful provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and of other contracts of like nature between the same parties.


author: DOWNING, J.

text:
    Gerald H. SANDERS, III v. Nicole Bourg SANDERS.
    No. 2006 CA 1401.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2007.

      Kathryn S. Lirette, Houma, Counsel for Plaintiff/Appellee Gerald H. Sanders, III.
    Robert L. Barrios, Jerri G. Smitko, Houma, Counsel for Defendant/Appellant Nicole Bourg Sanders.
    Before: PETTIGREW, DOWNING and HUGHES, JJ.
   DOWNING, J.

| ¡>Nicole Bourg Sanders appeals a judgment in which the trial court dissolved a community property settlement on the bases that the settlement was an extrajudicial partition and was lesionary. For the following reasons, we affirm the judgment of the trial court.

PERTINENT FACTS AND PROCEDURAL HISTORY

After nearly 20 years of marriage, Ms. Sanders filed a petition for divorce. Two days after filing the petition, the trial court signed a consent judgment ordering that Ms. Sanders and Mr. Sanders “are authorized to enter into the Community Property Settlement attached to the Petition for Divorce.” Ms. Sanders and Mr. Sanders then executed a document entitled “Community Property Settlement,” which' was filed into the record of these proceedings the next day.

Approximately seven months later, Mr. Sanders filed a petition to rescind the community property settlement pursuant to La. C.C. art 814. He alleged that the community property settlement should be set aside due to lesion in that the value he received was less by more than one fourth of the fair market value of the portion he should have received.

At the trial of the matter, the trial court found that the community property settlement was an extrajudicial partition, thus subject to rescission for lesion. It also found that the settlement was lesionary. Therefore, it ordered the dissolution of the partition.

Ms. Sanders now appeals, asserting two assignments of error:

1) the trial court erred in finding that the partition was extrajudicial;
2) the trial court erred in finding that the partition was lesionary.

^DISCUSSION

Jurisdiction

We first note the appellee, Mr. Sanders’, argument in brief that this appeal should be dismissed on the basis that the appeal was not timely filed since the appeal was filed 118 days after the notice of judgment was sent and since it was filed 76 days after the motion for new trial was dismissed. Our court’s jurisdiction depends on an appeal being timely filed. See Chamberlain ex rel. Wilmer J. v. Kennedy, 03-0488, pp. 6-7 (La.App. 1 Cir.12/31/03), 868 So.2d 753, 757-58. On review of the record, we conclude that the appeal has been timely filed and that we do have jurisdiction.

It is the duty of a- reviewing court to examine subject matter jurisdiction sua sponte. Whittenberg v. Whittenberg, 97-1424, pp. 2-3 (La.App. 1 Cir. 4/8/98), 710 So.2d 1157, 1158. “Whenever there is a serious issue regarding subject matter jurisdiction, a court (including an appellate court) should consider and rule on the issue at anytime, and the issue can even be raised by the court on its own motion.” Lowenburg v. Entergy New Orleans, Inc., 99-2894 p. 1 (La.12/17/99), 751 So.2d 868, 868 (Lemmon, J., concurring opinion).

Mr. Sanders argues that because the new trial motion was dismissed on Ms. Sanders’ motion rather than denied on the merits by the trial court, the appeal delays began from the date of the notice of judgment as if the motion for new trial had not been filed. La. C.C.P. art. 2087 provides in pertinent part that a devolutive appeal may be taken from within sixty days of any of the following:

(1) The expiration of the delay for applying for a new trial or judgment notwithstanding the verdict, as provided by Article 1974 and Article 1811, if no application has been filed timely.
|4(2) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial or judgment notwithstanding the verdict, as provided under Article 1914.

Our courts have interpreted this article to conclude that operative event to commence the appeal delays is trial court’s “acting on” the motion for new trial and not its specifically ruling on the merits of the motion. Succession of Tezeno v. Ordinario, 00-828, p. 5 (La.App. 3 Cir. 7/12/00), 771 So.2d 688, 689. Accordingly, the delay for taking a devolutive appeal could not have begun to run prior to the trial court dismissing Ms. Sanders’ motion for new trial.

Further, under La. C.C.P. art. 2087 A(2) it is the date of mailing the notice of the action on the new trial that specifically triggers the delay for filing the appeal. Here, the record contains no notice of the trial court’s action dismissing the motion for new trial. Only a minute entry informs us of the action. Since no notice has been sent, appeal delays have not yet begun to run. Even so, the appeal has been filed and granted, briefs have been filed, and the matter has been submitted to us for resolution.

Accordingly, we conclude that the appeal has been timely filed and that our jurisdiction has attached. We note Mr. Sanders’ reliance on La. C.C. art. 3463 and conclude that such reliance is misplaced. By the pertinent terms of Art. 3463, “Interruption [of prescription] is considered never to have occurred if the plaintiff abandons, voluntarily dismisses the action at any time either before the defendant has made any appearance of record or thereafter, or fails to prosecute the suit at the trial.” This language clearly applies to actions filed in the trial court. Nothing in the construction of this language suggests that it applies to appeal motions filed within the action. Mr. Sanders cites no jurisprudence applying the provisions of this article to post-trial motions, nor can we find any.

| aExtrajudicial Partition

Ms. Sanders argues that since the trial court entered an order authorizing the parties to enter a community property settlement, the settlement itself became either part of a final judgment to which res judicata principles apply or a judicial partition, which is not subject to a claim for lesion. We disagree.

First, we note that Ms. Sanders here does not contend that the settlement is of itself a transaction and compromise. True transactions have res judicata effect. La. C.C. art. 3078. Ms. Sanders’ arguments, however, revolve around the effect of the trial court’s decree that stated that the parties “are authorized to enter into the Community Property Settlement attached to the Petition for Divorce.” Accordingly, we limit our discussion to the effects of this decree.

We observe that the community property settlement has not been made part of any judgment. The authorization to enter the settlement as set forth above did not specifically or by reference incorporate the terms of settlement. As the trial court explained:

But I want to make it clear, that [authorization] was not an approval of the community property settlement and that did not make the community property settlement a judgment of this Court. The court was authorizing them to enter into it for purposes of terminating the community property regime. The substance of the community property settlement was never approved by the court, and, as far as this court is concerned, was never a judgment of this Court.

Ms. Sanders cites no law or jurisprudence, nor do we know of any, by which a judgment’s authorization to do something makes the authorized action the court’s decree. We specifically do not decide how or whether a court might accomplish this since this issue is not presented before us. However, since the community property settlement was not incorporated | finto or decreed by the judgment, the settlement cannot be a judgment to which res judicata principles apply.

Ms. Sanders next argues that the court’s authorization transformed the settlement into a judicial partition and, therefore, not subject to attack on account of lesion. But it takes more than judicial authorization or incorporation for a valid judicial partition. As the court explained in Junca v. Junco, 98-1723, p. 6 (La.App. 1 Cir. 12/28/99), 747 So.2d 767, 770, regarding judicial partition of community property, “if the partition is done judicially, the special procedures of Louisiana Revised Statutes 9:2801 are applicable.” In Junca, this court concluded that the community property settlement involved only became a judicial partition after suit was filed for partition pursuant to La. R.S. 9:2801, issues were disputed, stipulations were entered, and the partition was adopted and made a judgment of the court. Id. The court stated, “Once this was accomplished, the partition became a judicial partition not subject to being set aside on account of lesion under Louisiana Civil Code article 814.” See also Lapeyrouse v. Lapeyrouse, 98-0271, p. 3 (La.App. 1 Cir. 2/19/99), 729 So.2d 682, 684.

Here, the record fails to demonstrate that Ms. Sanders sought or pursued a judicial partition of the community property pursuant to La. R.S. 9:2801. Accordingly, the community property settlement cannot be a judicial partition of community property. See Junca, 98-1723 at p. 6, 747 So.2d at 770. Accordingly, we conclude mere reference in a judgment does not convert an extrajudicial partition into a judicial one that would not be subject to being set aside on account of lesion.

This assignment of error is without merit. The trial court did not err in determining that the community property settlement at issue was an extrajudicial partition subject to recission on account of lesion.

17Lesion

Ms. Sanders argues that the evidence presented at trial was insufficient to support a judgment dissolving the community property partition between them. We disagree.

The trial court identified Mr. Sanders’ $80,000.00 personal injury settlement as the main item in dispute. Ms. Sanders argues that Mr. Sanders had the burden of proving this item was not community property. The trial court, however, found that the law placed that burden on her and found by clear and convincing evidence that this asset was Mr. Sanders’ separate property. The trial court did not commit error in so ruling.

Louisiana Civil Code article 2344 provides specifically that “[djamages due to personal injuries sustained during the existence of the community by a spouse are separate property.” Here, the community property settlement identifies the $80,000.00 at issue as the remainder of settlement proceeds from a “personal injury claim” in the amount of approximately $80,000.00. Mr. Sanders’ testimony supported this characterization of the funds.

Ms. Sanders points to the further provisions of La. C.C. art. 2344 providing that “the portion of the damages attributable to expenses incurred by the community as a result of the injury, or in compensation of the loss of community earnings, is community property.” However, there is no evidence in the record regarding what portion, if any, of the damages were attribut-

able to expenses incurred by the community-

Accordingly, we conclude the trial court did not err in finding that the $80,000.00 at issue was attributable to Mr. Sanders’ personal injury, and, thus, his separate property pursuant to La. C.C. art. 2344.

IsAfter deducting the $80,000.00 from the community property settlement because it was Mr. Sanders’ separate property, the trial court found that he received at most $28,000.00, which represented the $18,000.00 purchase price of his 2003 Ford Ranger truck and $10,000.00 in a retirement account. It further found that Ms. Sanders received the house worth at least $99,000.00 based on its purchase price five months before the divorce suit was filed, She also received other items including her car, furniture, a washer and dryer, and a swing set.

The trial court concluded that, “It’s clear that when you add those values together [$28,000 (the maximum value received by Mr. Sanders) and $99,000 (‘the value of the house alone’) ], divided by two, that Mr. Sanders didn’t come anywhere near 75 percent of the one half of what are apparently community assets in this case.” This calculation is represented as follows:

$127,000.00 (value of community) ⅛2
63,500.00 (one-half value of community) x .75
$ 47,625.00 (minimum amount Mr. Sanders should have received)

Accordingly, we cannot conclude the trial court erred in finding by clear and convincing evidence that the partition was le-sionary and ordering its dissolution.

We acknowledge Ms. Sanders’ argument that no evidence specifically establishes the community status of the home she received in the community property settlement. However, under La. C.C. art. 2340, the home is presumed to be community even though it was purchased with proceeds of Mr. Sanders’ personal injury settlement. “The party asserting the separate nature of the property acquired during the marriage has the burden of overcoming a strong presumption in favor of the community.” Tullier v. Tullier, 464 So.2d 278, 283 (La.1986). Ms. Sanders does not argue and has presented no evidence that the home is her separate property; therefore, we fail to see how this argument supports or advances her position.

This assignment of error is without merit.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court. Costs of this appeal are assessed against Nicole Bourg Sanders.

AFFIRMED.

      . This article provides as follows: "Things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove that they are separate property.”


text:
    R.G. CLAITOR’S REALTY v. Bill RIGELL and GJR, Inc. D/B/A Eagle Travel Consultants.
    No. 2006 CA 1629.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2007.

      Richard A. Aguilar, Edward L. Fenasci, New Orleans, Counsel for Plaintiff/Appel-lee R.G. Claitor’s Realty.
    Thomas M. Lockwood, Baton Rouge, Counsel for Defendant GJR, Inc.
    A. Gregory Rome, Baton Rouge, Counsel for Defendant/Appellant Bill Rigell.
    Before: PARRO, GUIDRY, and McClendon, jj.
   GUIDRY, J.

lain this action on a lease, defendant/appellant, Bill Rigell (Rigell), appeals the trial court’s judgment granting plaintiff/ap-pellee’s, R.G. Claitor’s Realty (Claitor Realty), motion for summary judgment and ordering Rigell to pay $49,714.20 in unpaid rent, common area maintenance charges, and late fees, plus interest. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On November 30, 1994, Rigell, for GJR, Ltd. as lessee, and Jon F. Claitor, for Claitor Realty as lessor, executed a lease agreement regarding office space located on Acadian Thruway in Baton Rouge, Louisiana. Thereafter, on June 12, 1998, Claitor Realty filed suit on the lease, naming Rigell and GJR, Inc. d/b/a Eagle Travel Consultants (GJR) as defendants. In its suit, Claitor Realty alleged GJR breached the lease agreement by vacating the premises prior to the expiration of the lease term and accordingly owed Claitor Realty for unpaid rent, common area maintenance charges, late fees, and attorney fees. Claitor Realty also asserted that Rigell was personally liable for the amount owed because at the time of the execution of the lease agreement, GJR was not incorporated. Rigell and GJR answered the petition, with GJR asserting a reconventional demand and claiming that Claitor Realty breached the lease agreement by disturbing GJR’s peaceful possession of the lease premises.

On January 16, 2003, Rigell filed a motion for summary judgment, asserting that he was not personally liable for the lease obligation of GJR because only GJR bound itself as lessee, and the parties had agreed to waive any requirement for a personal guarantee on the lease. The trial court subsequently denied Rigell’s motion. Thereafter, on December 8, 2005, Claitor Realty filed a motion for partial summary judgment, asserting that there was no genuine issue of material fact in [adispute that GJR breached the lease agreement and Rigell was personally liable under the lease. Accordingly, Claitor Realty requested that the court adjudge Rigell liable for $46,900.00 in unpaid rent and common area maintenance charges, $2,814.00 in late charges, attorney fees, and interest. Claitor Realty also sought dismissal of GJR’s reconventional demand, asserting that there was no evidence to support the facts that GJR alleged underlie its claim.

A hearing on the motion for partial summary judgment was set for March 20, 2006. On March 16, 2006, Rigell’s attorney filed a motion to continue the hearing, asserting that he had been unable to prepare an opposition to the motion for partial summary judgment because of unanticipated absences of support staff in his firm. By the March 20, 2006 hearing, neither Rigell nor GJR had filed an opposition. The trial court denied Rigell’s request for a continuance and in a judgment dated April 24, 2006, granted Claitor Realty’s motion for partial summary judgment, dismissing GJR’s reconventional demand with prejudice and entering judgment against Rigell in the principal amount of $49,714.20, together with judicial interest, and attorney fees and costs to be fixed upon subsequent motion by Claitor Realty. Rigell now appeals from this judgment, asserting that the trial court erred in finding him personally liable for the lease obligations of GJR.

| ¿DISCUSSION

An appellate court’s review of a summary judgment is de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Boland v. West Feliciana Parish Police Jury, 03-1297, p. 4 (La.App. 1st Cir.6/25/04), 878 So.2d 808, 812, writ denied, 04-2286 (La.11/24/04), 888 So.2d 231. A motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Boland, 03-1297 at p. 4, 878 So.2d at 812.

In support of its motion for summary judgment, Claitor Realty produced evidence showing: at the time Rigell and Claitor Realty executed the lease agreement on November 30, 1994, GJR, Ltd., the designated lessee, was not incorporated; GJR, Ltd. was never incorporated, but rather, GJR, Inc. was incorporated on February 3, 1995; Rigell is an officer of GJR, Inc.; GJR, Inc. occupied the lease premises until October 31, 1996, when it vacated the lease premises approximately fourteen months prior to the expiration of the lease term; and, the rent, common area maintenance charges, and late fees for the remainder of the lease term totaled $49,714.20. Accordingly, Claitor Realty asserted that Rigell was personally liable for the amount owed under the lease agreement, having entered into a contract on behalf of a corporation that was not yet formed.

Louisiana Revised Statute 12:26 provides:

A corporation formed under this Chapter shall not incur any debts or begin the transaction of any business, except business incidental to its organization, or to the obtaining of subscriptions to, or payment for, its shares, until the amount of paid-in capital with which it will begin business, if stated in the articles, has been paid in full.

Further, La. R.S. 12:92(A) provides that “[i]f a corporation has transacted any business in violation of R.S. 12:26, the officers who participated therein and |ñthe directors shall be liable jointly and severally with the corporation and each other for the debts or liabilities of the corporation arising therefrom.” As such, principals of a corporation, such as officers and directors, who enter contracts purportedly on behalf of the corporation, but prior to the corporation’s formation, are personally liable on those contracts. See Welch v. Fuhrman, 496 So.2d 484 (La.App. 1st Cir.1986); see also South Central Bell Telephone Co. v. Professional Answering Service of Lafayette, Inc., 527 So.2d 1195 (La.App. 3rd Cir.1988); Scullin v. Rhoden, 518 So.2d 1101 (La.App. 5th Cir.1987); and Tomeny v. Boykin, 391 So.2d 85 (La.App. 4th Cir.1980).

From our review of the record, we find that Claitor Realty met its burden in establishing that Rigell was personally liable for the lease obligations. The undisputed evidence, as outlined above, established that Rigell executed the lease agreement on November 30, 1994, on behalf of GJR, Ltd., a corporation that never legally existed. GJR, Inc. was incorporated on February 3, 1995; however, this was approximately two months after the execution of the lease agreement. Therefore, in accordance with the law as outlined above, Rigell was personally liable to Claitor Realty under the lease agreement.

Further, while Claitor Realty did introduce evidence indicating that it waived a personal guarantee under the lease, we do not find that this waiver constituted a waiver of Rigell’s personal liability under La. R.S. 12:92(A). A “personal guaranty” is defined as:

[A] collateral promise or undertaking by one person to answer for the payment of some debt or the performance of some contract or duty in the case of the default of another person, who in the first instance is liable for such payment or performance; a collateral promise or undertaking to pay a debt owing by a third person in case the latter does not pay.

See Reconstruction Finance Corp. v. Mickelberry, 189 La. 105, 109 (1938). However, personal liability under La. R.S. 12:92(A) is not premised on |f;a promise to pay the debt of a third person, but rather, liability is imposed for engaging in conduct in violation of La. R.S. 12:26 and renders the violator jointly and severally liable with the corporation. The waiver of a personal guarantee when signing in a corporate capacity is entirely distinct from a violation that arises under our business corporation law. Accordingly, we find that any waiver of a conventional personal guarantee on the lease agreement did not affect the imposition of statutory personal liability under La. R.S. 12:92(A).

Therefore, having found that Claitor Realty met its burden in establishing that there was no genuine issue of material fact, and because Rigell failed to file an opposition showing that a genuine issue of material fact remained for trial, we find the trial court was correct in granting summary judgment in favor of Claitor Realty.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court. All costs of this appeal are to be borne by the appellant, Bill Rigell.

AFFIRMED.

PARRO, J., concurs.

      . GJR, Ltd., as referenced in the lease agreement, was never formed; rather, GJR, Inc. was incorporated on February 3, 1995.

      . The motion for appeal states that “defendants” request an appeal from the April 24, 2006 judgment; however, Rigell only seeks review of the trial court's determination of his personal liability. Accordingly, we do not address the propriety of the trial court's judgment as it relates to the dismissal of GJR’s reconventional demand.

      . On October 3, 2006, this court issued a rule to show cause ordering the parties to submit briefs as to why the appeal should not be dismissed by showing that there has been a designation of the judgment by the trial court under La. C.C.P. art. 1915(B). However, after the trial court issued a judgment on September 14, 2006, determining the amount of attorney fees, costs, and expenses due to Claitor Realty and also designating the April 24, 2006, and September 14, 2006, judgments as final appealable judgments and declaring that there is no just reason for delay of the appeal of these judgments, this court recalled the show cause order and maintained the appeal. The September 1.4, 2006 judgment is the subject of a separate appeal also decided this date. R.G. Claitor’s Realty v. Rigell, 2006-2336 (La.App. 1st Cir.5/4/07), 961 So.2d 458, 2007 WL 1300184.