author: SAUNDERS, Judge.

text:
    Michael FOGLEMAN, et al. v. MEAUX SURFACE PROTECTION, INC.
    No. 10-1210.
    Court of Appeal of Louisiana, Third Circuit.
    March 9, 2011.

      Maria Nan Alessandra, Phelps Dunbar, L.L.P., New Orleans, LA, for Defendant/Appellee, Meaux Surface Protection, Inc.
    Lawrence Goode Pugh III, William W. Sentell, Pugh, Accardo, Haas, et al., New Orleans, LA, for PlaintiffiAppellant, Michael Fogleman, Charles Kotrla.
    Brandon E. Davis, Phelps, Dunbar, LLP, New Orleans, LA, for Defendant/Ap-pellee, Meaux Surface Protection, Inc.

      Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   SAUNDERS, Judge.

_|jThis is a case involving whether a claim for a bonus due under an employment contract was barred by the res judicata effect of a prior federal court judgment that awarded the former employer damages due to the former employees’ breach of fiduciary duty. The trial court granted the former employer’s exception. We reverse.

FACTS AND PROCEDURAL HISTORY:

Michael Fogleman and Charles Kotrla (collectively appellants) were employees at Meaux Surface Protection, Inc. (Meaux) under an employment contract. After appellants resigned from Meaux, they started a competing business wherein they solicited employees and clients from Meaux.

In Texas, Meaux filed suit for damages against appellants for breach of fiduciary duty. Judgment was reached by a Texas Federal District Court on February 24, 2009, that awarded Meaux $1,430,000.00 in damages for breach of fiduciary duty.

On July 23, 2007, appellants filed a petition for unpaid wages in the 15th Judicial District Court in Lafayette Parish, Louisiana. Appellants alleged in that petition that Meaux owed them wages and bonuses under an employment contract. On June 15, 2010, Meaux filed an exception of res judicata. After hearing argument from counsel at a hearing on the merits of the exception, the trial court maintained Meaux’s exception. Thereafter Meaux entered into evidence a portion of the record from the Texas litigation. The trial court signed a judgment dismissing appellants’ petition with prejudice on June 28, 2010. Appellants have appealed, alleging a single assignment of error.

DISCUSSION OF THE MERITS:

Appellants contend that “the trial court erred in its application of the doctrine 12of res judicata to the facts of this case.” We agree.

“The standard of review of a ruling sustaining an exception of res judicata is manifest error when the exception is raised prior to the case being submitted and evidence is received from both parties.” Jones ex rel. Jones v. GEO Group, Inc., 08-1276, p. 4 (La.App. 3 Cir. 4/1/09), 6 So.3d 1021, 1024. Appellants argue that the standard of review applicable is de novo because, while the exception was raised prior to the case being heard and Meaux submitted evidence, they submitted no evidence. Thus, according to appellants, evidence was not “received from both parties.” Id. We are not swayed by this argument. The trial court received no evidence from appellants because they chose not to submit any, not because of a lack of opportunity to do so.

However, appellants correctly point out that the manifest error standard of review is only applicable to questions of fact. See Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990). Here, the trial court did not express any factual determinations in reaching its judgment. It opined that the res judicata effect of the previous judgment rendered in the Texas litigation barred appellants’ suit against Meaux. “The res judicata effect of a prior judgment is a question of law that is reviewed de novo.” Morales v. Parish of Jefferson, 10-273 (La.App. 5 Cir. 11/9/10), 54 So.3d 669, citing Jefferson Marine Towing, Inc. v. Kostmayer Const., LLC, 09-310, p. 5 (La.App. 5 Cir. 1/26/10), 32 So.3d 255, 259, writ denied, 10-378 (La.4/23/10), 34 So.3d 265. Therefore, we will conduct a de novo review to determine whether the trial court was legally correct in finding that Meaux’s judgment barred appellants’ suit due to its res judicata effect.

Federal law is applicable when a determination is made of what res judicata |seffect, if any, a federal judgment has on a subsequent litigation. Jones ex rel. Jones, 6 So.3d 1021; Green v. Iberia Parish Sch. Bd., 06-1060 (La.App. 3 Cir. 12/20/06), 945 So.2d 940, writ denied, 07-111 (La.3/16/07), 952 So.2d 697; Terrebonne Fuel & Lube, Inc. v. Placid Refining Co., 95-654, 95-671 (La.1/16/96), 666 So.2d 624.

“Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigat-ing issues that were or could have been raised in that action.” Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308 (1980). “[A]ny judgment under federal res judicata law, bars a subsequent suit if all of the following tests are satisfied: 1) both cases involve the same parties; 2) the prior judgment was rendered by a court of competent jurisdiction; 3) the prior decision was a final judgment on the merits; and 4) the same cause of action is at issue in both cases”. Terrebonne Fuel & Lube, Inc., 666 So.2d at 633, citing Matter of Baudoin, 981 F.2d 736 (5th Cir.1993); Eubanks [v. FDIC, 977 F.2d 166 (5th Cir.1992) ].

There is no disagreement that the parties are the same in both litigations, that the Texas federal court which rendered the Texas judgment was competent, and that the Texas judgment was a final judgment on the merits. Thus, the only question we must answer is whether “the same cause of action is at issue in both” the Texas litigation and the litigation before us. Id.

The United States Fifth Circuit, in Test Masters Educational Services, Inc. v. Singh, 428 F.3d 559, 571 (5th Cir.2005), cert. denied, 547 U.S. 1055, 126 S.Ct. 1662, 164 L.Ed.2d 397 (2006) (citations, internal quotations, and parentheticals omitted), discussed the proper test used by federal courts in determining whether two suits involve the same cause of action when it stated:

In order to determine whether both suits involve the same cause of action, this Court uses the transactional |4test. Under the transactional test, a prior judgment’s preclusive effect extends to all rights of the plaintiff with respect to all or any part of the transaction, or series of connected transactions, out of which the original action arose. What grouping of facts constitutes a transaction or a series of transactions must be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage. If a party can only win the suit by convincing the court that the prior judgment was in error, the second suit is barred. The critical issue is whether the two actions are based on the same nucleus of operative facts.

Appellants first argue that Meaux’s failure to include the entire record from the Texas litigation is fatal to Meaux’s exception of res judicata. They base their argument on Union Planters Bank v. Commercial Capital Holding Corp., 04-871 (La.App. 1 Cir. 3/24/05), 907 So.2d 129, where our first circuit reversed a trial court’s grant of an exception of res judica-ta because the party pleading res judicata failed to introduce any of the prior litigation’s record. The court reasoned that the party pleading res judicata could not meet its burden of proof on the exception, as the record before it had no evidence of the first suit. Thus, the excepting party failed to show that the pending matter had ever been adjudicated.

Contrary to appellants’ contention, the Union Planters Bank court did not conclude that the entire record from the first suit must be included at the hearing on the exception of res judicata. It merely found that the excepting party failed to carry its burden of proof due to a complete absence of evidence in the record of what was allegedly previously adjudicated. Clearly, a party pleading res judicata cannot succeed without any evidence of what was adjudicated. However, the record before us includes part of the previous litigation, including the judgment which is under consideration on this appeal. Thus, we are not persuaded by appellants’ argument.

lfiThe record before us does not include the petition/complaint filed by Meaux against appellants in the Texas litigation. “Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Allen v. McCurry, 449 U.S. at 94, 101 S.Ct. 411 (emphasis added). Here, without the petition/complaint, we are severely hindered in making a determination whether the issues raised by appellants’ Louisiana litigation “were or could have been raised” in the Texas litigation at the time the complaint was filed. Id.

As such, we would be justified in finding that this absence is fatal to Meaux’s exception. However, such a bright-line rule is not necessary. Rather, we will conduct a review using the record that we do have before us to determine, as fully as possible under the circumstances, whether the two litigations share an operative fact nucleus.

In reviewing the record, we find several differences between the two litigations. The relevant time frame for the Louisiana litigation is during appellants’ employment with Meaux. This is different from the Texas litigation where the relevant time frame is after appellants ceased working for Meaux. The Louisiana litigation originated from employer/employee contracts between Meaux and appellants. The Texas litigation originated from a breach of duty appellants owed to Meaux. The motivation of the Louisiana litigation for appellants is to collect wages for work performed. The motivation of the Texas litigation was for Meaux to collect damages for the harm it suffered.

The evidence for either party to succeed in the actions against the other is also different. In the Louisiana litigation, appellants must show that they performed their work under the terms of the employment contract and Meaux did not pay them for ]fithat work, thus breaching the contract. In the Texas litigation, Meaux showed that appellants had a duty to it, appellants breached that duty, and it suffered damages because of that breach. Finally, we note that it is not necessary for appellants to convince the trial court that the Texas judgment was in error in order for them to recover from Meaux.

Given the above, we find that the trial court committed legal error in granting Meaux’s exception of res judicata. The factual scenarios at the heart of the two litigations are not parallel. The central transaction or series of transactions in the Texas litigation was appellants quitting, forming a competing business, and breaching a fiduciary duty they owed to Meaux by taking Meaux’s other employees and clients. The central transaction or series of transactions in the Louisiana litigation is the contract of employment, the work performed under the terms of the contract, and the alleged breach by Meaux of that contract by failing to pay appellants a bonus that they allegedly earned. Accordingly, we reverse the trial court and remand the case for further proceedings consistent with this opinion.

DECREE:

Michael Fogleman and Charles Kotrla raised a single assignment of error, that the trial court erred in maintaining Meaux Surface Protection, Inc.’s exception of res judicata. We find merit to this assignment. As such, we reverse the trial court’s judgment and remand the case for further proceedings consistent with this opinion. All costs of this appeal are taxed to Meaux Surface Protection, Inc.

REVERSED AND REMANDED.

      . We do not include the date this petition was filed, nor whether it was originally filed in Texas state or federal court, as the petition/complaint is not in the record.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    Timothy PAGE and Charlotte Canerday Page v. William J. WISE.
    No. 10-1273.
    Court of Appeal of Louisiana, Third Circuit.
    March 9, 2011.
    Bobby L. Culpepper, Culpepper & Carroll, PLLC, Jonesboro, Louisiana, for Plaintiffs/Appellants, Timothy Page and Charlotte Canerday Page.
    Jared Dunahoe, Dunahoe Law Firm, Natchitoches, Louisiana, for Defendant/Appellee, William J. Wise.

      Court composed of BILLY H. EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

pin this property case, Plaintiffs, Timothy and Charlotte Canerday Page, appeal the trial court judgment dismissing their possessory action. Finding no error by the trial court, we affirm.

FACTS

On March 25, 2009, Plaintiffs filed a possessory action against William J. Wise (Defendant) seeking to “recognize [their] right of possession of the subject immovable property and [to be maintained] in possession thereof.” Plaintiffs purchased the twenty acres of immovable property in dispute on January 9, 2001. The property is situated in both Natchitoches Parish and Rapides Parish, Louisiana, and is described in the Plaintiffs’ petition as:

A certain tract of land, lying[,] being[,] and situated in Rapides Parish, Louisiana, and being more particularly described as twenty (20) acres of land located, lying[,] and being in Section Twenty-Eight (28), Township Six (6) North, Range Four (4) West, bounded North by land now or formerly belonging to Alex Wallet; East by lands now or formerly belonging to Sam S. Mims or Damingo Flores; West and South by property now or formerly belonging to Alex Wallet[;] and being the property acquired by William C. Davis from Henry C. Thompson by deed dated September 27, 1921, recorded in Conveyance Book 111, page 95; and being the same property acquired by Susie T. Lemoine, et al, from William C. Davis by deed dated July 7, 1936, recorded in Conveyance Book 210, page 108, and being the same property acquired by Edith G. Watson and William T. Watson from Susie T. Lemoine, et al, by deed dated September 1, 1943, recorded in Conveyance Book 280, page 529, all references being to the records of Rapides Parish, Louisiana, and together with all buildings and improvements thereon situated. A portion of the above property may lie in Natchitoches Parish, Louisiana.
The above described property is believed to be in the Southwest Quarter of the Northeast Quarter[,] and in the Northwest Quarter of the Southeast Quarter of Section 28, Township 6 North, Range 4 West, Rapides and Natchitoches Parishes, Louisiana; being the same property acquired by Mathew McCarter and Edna Quin McCarter from Leo C. Schmidt by deed dated October 5,1957, recorded in Conveyance Book 512, page 409, under Original Entry # 419383; and acquired from Mona Virginia Brown Ward, as a single woman, from Matthew McCarter and Edna Quin McCarter by Act of Cash Sale dated and recorded | ^February 10, 1965, in Conveyance Book 654, page 186, under Original Entry # 506828, all [of the] records of Rapides Parish, Louisiana.

In their possessory action, Plaintiffs alleged that they “have had possession of said property since 2001 and have evidenced their possession of said property by having it surveyed in 2005, painting lines, raising pine trees on same[,] and paying the taxes on same.” Plaintiffs further asserted that “although [they] were aware that a portion of said property was assessed to [Defendant in Natchitoches Parish, Louisiana, only within the past six months did [Defendant make [them] aware that he claimed ownership of same.” Defendant answered the petition on May 6, 2009, denying Plaintiffs’ allegations.

A bench trial in this matter was held on July 22, 2010. At trial, the parties presented their evidence for the court’s consideration, and the trial court took the matter under advisement. Subsequently, the trial court issued Written Reasons for Judgment, finding that Plaintiffs had not met their burden of proof to establish their possession of the immovable property in dispute. The trial court wrote, in pertinent part:

In this case, both parties introduced evidence[] (testimonial and documentary) of their possession. Timothy Page testified his acts of possession on said property included marking and painting lines, paying taxes on the property, having the property surveyed[,] and growing timber. However, he further testified that he had not been on the property since he purchased the property in 2001. He also testified that he did not physically plant nor did he have anyone else plant timber on the property. He testified that he hired a forester in 2007 to look at the timber. [Mr.] Page also stated that he never built a fence around the property.
Land surveyor Timothy Howell [] testified that he surveyed the land in 2005. During his survey, he noted a fence on the north boundary of the property and forest land on the east. He did not note any | ¡¡buildings on the property. He did notice four-wheeler trails on the disputed property. He also testified that after reading the deed to the property, he contacted the [Defendant to notify him of the survey. Mr. Howell stated that he marked the west boundary line by blazing and painting lines.
Contrarily, [Mr.] Wise testified that he also performed acts of possession on the property since his purchase in 1983. He testified not only does he live on the property, he maintains wood roads on the property, mows the land, and hunts on the land. He also installed deer stands and rides on the land periodically with a four wheeler. He further testified that in 1995 he cut and sold timber from the land. [Mr.] Wise stated that he has never seen [Mr.] Page on the property and never received notification from the surveyor. [Mr.] Wise further asserted that he allows his son to live in a trailer on the property. During his testimony, [Mr.] Wise informed the court of the location of his home on the survey map introduced into evidence. He asserted that a portion of his home is located on the [twenty] acres in dispute. [Mr.] Wise also provided the [c]ourt with the deed to the property asserting that he also has constructive possession of the property.
The [c]ourt agrees with the [Defendant. Although [Plaintiffs] acquired the disputed property in 2001, they did not perform any acts of possession on the said property. [Mr.] Page states that having the property surveyed and paying taxes are acts of corporeal possession and shows that they should be maintained in possession. The [c]ourt disagrees. Jurisprudence is clear that mere surveying of property is not an act of possession. Anderson v. Winnsboro Gin, Inc.[, 467 So.2d 865 (La.App. 2 Cir.1985) ]. The Louisiana Supreme Court further stated in Ree Corporation v. Shaffer, [260 So.2d 307, 312] (La.1972), “[T]he mere payment of taxes does not constitute the physical possession required by [La.Code Civ.P. art.] 3660[] to bring a possessory action.”
Furthermore, [Mr.] Page admitted that he had not been on the property since the purchase. He further stated that he did not cultivate |4timber or cut timber or perform any other acts showing possession of the land. He statedf,] “[T]he good Lord raised the timber.”
Based on the evidence presented, the [c]ourt finds [Plaintiffs] did not meet their burden of proof. [Plaintiffs] did not prove acts sufficient to constitute possession.

On August 11, 2010, the trial court signed a judgment dismissing Plaintiffs’ possesso-ry action and maintaining Defendant in possession of the immovable property in dispute.

ASSIGNMENTS OF ERROR

Plaintiffs appeal, alleging that the trial court erred “in allowing into evidence proof of title[ ]” and “in determining that [they] did not prove act[s] sufficient to constitute possession.”

STANDARD OF REVIEW

The appellate standard of review of factual determinations was previously set forth by this court in Allen v. Belgard, 05-1284, pp. 10-11 (La.App. 3 Cir. 4/5/06), 925 So.2d 1275, 1282:

An appellate court may not set aside a trial court’s findings of fact in absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A two-tiered test must be applied in order to reverse the findings of the trial court:
a. the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
b. the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

Mart v. Hill, 505 So.2d 1120 (La.1987).

Even where the appellate court believes its inferences are more reasonable than the fact finder’s, reasonable determinations and inferences of fact should not be disturbed on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Additionally, a reviewing court must keep in mind that if a trial court’s findings are reasonable based upon the entire record and evidence, an appellate court may not reverse said findings even if it is convinced that had it been sitting as trier of fact it would have weighed that evidence differently. Housley v. Cerise, 579 So.2d 973 (La.1991). The basis for this principle of review is grounded not only upon the better capacity of the trial court to evaluate live witnesses, but also upon the proper allocation of trial and appellate functions between the respective courts.

LAW AND DISCUSSION

In their first assignment of error, Plaintiffs assert that the trial court erred “in allowing into evidence proof of title.” Plaintiffs argue in brief that, despite their objections, the trial court allowed Defendant to introduce exhibits and elicit testimony relative to ownership or title. Plaintiffs assert that Defendant was also allowed to question their surveyor, Mr. Howell, about a Partition which was recorded in 1983 and the property description contained therein. Plaintiffs also complain that Defendant introduced the title opinion they obtained in April of 2000 which was prior to their purchase of the property at issue herein on January 9, 2001. Plaintiffs argue that the trial court erred because La.Code Civ.P. art. 3661 “specifically shows that the deeds and title opinion were not admissible into evidence.”

In response, Defendant argues that he introduced “his title to show the untimeliness of [Plaintiffs’] possessory action[]” pursuant to La.Code Civ.P. art. 3658(4) which requires a possessory action to be instituted “within a year of the disturbance.” Defendant also asserts that he “offered his title into evidence to prove the extent of his possession[ ]” and “to prove the vagueness of [Plaintiffs’] property description.” Defendant asserts that “[t]he vagueness of [Plaintiffs’ property] description is relevant because it precludes [them] from invoking the benefits of constructive possession.”

| ^Louisiana Code of Civil Procedure Article 3661 provides:

In the possessory action, the ownership or title of the parties to the immovable property or real right therein is not at issue.
No evidence of ownership or title to the immovable property or real right therein shall be admitted except to prove:
(1) The possession thereof by a party as owner;
(2) The extent of the possession thereof by a party; or
(3) The length of time in which a party and his ancestors in title have had possession thereof.

Based upon our review of the evidence, we find no error by the trial court in allowing Defendant’s exhibits into evidence. Defendant’s offerings fall within the exceptions enumerated in La.Code Civ.P. art. 3661. Defendant’s evidence corroborated his testimony and, likewise, established the length of time that he has had possession of the immovable property in dispute. Therefore, we find no merit in Plaintiffs’ first assignment of error.

In their second assignment of error, Plaintiffs contend that the trial court erred “in determining that [they] did not prove act[s] sufficient to constitute possession.” Plaintiffs reiterate in brief their assertion that their actions met the definition of possession. According to Plaintiffs’ brief, “[n]ot only was the property surveyed!,] but it was marked so it was clearly visible to [Defendant that [they] claimed possession of same.”

Defendant counters by asserting that he was never contacted by either Plaintiffs or Mr. Howell, their surveyor; thus, he “was unaware of who had conducted the survey and painted Iines[.]” Defendant argues that the Plaintiffs’ payment of taxes and “surveying and painting the lines did not put [him], or anyone else for that matter, on notice that [Plaintiffs were] possessing the property.” Defendant contends |7that “[t]here is no evidence in the record that [Plaintiffs] ever treated or in any way managed the timber ...,” and he argues that “the act of ‘raising pine trees’ is not an act of possession within the meaning of [La.Code Civ.P. art.] 3658.”

Possession is defined in Louisiana’s Civil Code as “the detention or enjoyment of a corporeal thing, movable or immovable, that one holds or exercises by himself or by another who keeps or exercises it in his name.” La.Civ.Code art. 3421. It is a “matter of fact,” and a person who possesses “a thing for over a year acquires the right to possess it.” La.Civ.Code art. 3422. “To acquire possession, one must intend to possess as owner and must take corporeal possession of the thing.” La. Civ.Code art. 3424. Corporeal possession is defined in Louisiana’s Civil Code as “the exercise of physical acts of use, detention, or enjoyment over a thing.” La.Civ.Code art. 3425. Louisiana Civil Code Article 3426 provides “[o]ne who possesses a part of an immovable by virtue of a title is deemed to have constructive possession within the limits of his title. In the absence of title, one has possession only of the area he actually possesses.”

Louisiana Code of Civil Procedure Article 3655 defines a possessory action as “one brought by the possessor of immovable property or of a real right therein to be maintained in his possession of the property or enjoyment of the right when he has been disturbed, or to be restored to the possession or enjoyment thereof when he has been evicted.” Pursuant to La. Code Civ.P. art. 3656, “[t]he possessory action shall be brought against the person who caused the disturbance.... ” Louisiana Code of Civil Procedure Article 3658 mandates:

To maintain the possessory action the possessor must allege and prove that:
(1) He had possession of the immovable property or real right therein at the time the disturbance occurred;
|s(2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud;
(3) The disturbance was one in fact or in law, as defined in Article 3659;[] and
(4) The possessory action was instituted within a year of the disturbance.

We have reviewed the evidence and agree with the factual conclusions reached by the trial court. Plaintiffs’ possessory action is legally flawed because it failed to clearly and overtly establish their intent to possess the immovable property in dispute. Plaintiffs, by their own admission, had never even set foot on the property since their purchase of same in 2001. Plaintiffs did not possess within the meaning of either corporeal possession or constructive possession. Merely having the land surveyed without Defendant’s knowledge is insufficient to establish either corporeal or constructive possession by Plaintiffs. Plaintiffs’ actions did not demonstrate an intent to possess to Defendant, or anyone else. Therefore, we find no clear or manifest error in the trial court’s factual findings relative to Plaintiffs’ possession, or lack thereof. Plaintiffs failed to meet their burden of proof set forth in La.Code Civ.P. art. 3658. Plaintiffs assignments of error are without merit.

_[2DECREE

For the foregoing reasons, the judgment of the trial court is affirmed in all respects. Costs are assessed to Plaintiffs/Appellants, Timothy and Charlotte Canerday Page.

AFFIRMED.

      . Hugh Timothy Howell, a Registered Land Surveyor, was accepted by the trial court as an expert in land surveying.

      . Louisiana Code of Civil Procedure Article 3660 provides:
      A person is in possession of immovable property or of a real right therein, within the intendment of the articles of this Chapter, when he has the corporeal possession thereof, or civil possession thereof preceded by corporeal possession by him or his ancestors in title, and possesses for himself, whether in good or bad faith, or even as a usurper.
      Subject to the provisions of Articles 3656 and 3664, a person who claims the ownership of immovable property or of a real right therein possesses through his lessee, through another who occupies the property or enjoys the right under an agreement with him or his lessee, or through a person who has the use or usufruct thereof to which his right of ownership is subject.

      . Louisiana Code of Civil Procedure Article 3659 defines the two kinds of disturbances which give rise to a possessory action, disturbance in fact and disturbance in law, as follows:
      A disturbance in fact is an eviction, or any other physical act which prevents the possessor of immovable property or of a real right therein from enjoying his possession quietly, or which throws any obstacle in the way of that enjoyment.
      A disturbance in law is the execution, recor-dation, registry, or continuing existence of record of any instrument which asserts or implies a right of ownership or to the possession of immovable property or of a real right therein, or any claim or pretension of ownership or right to the possession thereof except in an action or proceeding, adversely to the possessor of such property or right.


author: EZELL, Judge.

text:
    Thomas RHYMES v. WINN-DIXIE LOUISIANA, INC.
    No. CA 10-1357.
    Court of Appeal of Louisiana, Third Circuit.
    March 9, 2011.
    David John Calogero, Davidson, Meaux, Sonnier & McElligott, L.L.P., Lafayette, LA, for Defendant/Appellee, Winn Dixie Louisiana, Inc.
    Harold Dewey Register, Jr., Lafayette, LA, for Plaintiff/Appellant, Thomas Rhymes.
    Court composed of BILLY HOWARD EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   EZELL, Judge.

1 Ahornas Rhymes filed suit against Winn-Dixie Louisiana, Inc. for damages he alleges he sustained at the Abbeville store when the store manager physically restrained him after he was suspected of shoplifting. The trial court granted a motion for summary judgment filed by Winn-Dixie claiming immunity from civil liability pursuant to La.Code Crim.P. art. 215. Mr. Rhymes appeals that judgment.

FACTS

On Christmas Eve morning in 2007, Mr. Rhymes entered the Winn-Dixie store in Abbeville to purchase some Beano and cough syrup. In his deposition testimony, Mr. Rhymes indicated that he had been shopping in the store for about fifteen minutes when his sugar level started decreasing. He knew this because he started getting dizzy and weak.

Mr. Rhymes had not gotten a shopping basket, so he put the Beano and cough syrup in his coat pockets and then grabbed about six to eight packages of Honey Buns. He was heading toward a cash register when a manager approached him and asked for his products. According to Mr. Rhymes, the manager took the products and told him to leave the store. The manager then told Mr. Rhymes to stay. Mr. Rhymes indicated that he smelled alcohol on the manager’s breath, so he continued to walk out of the store.

At that point, Mr. Rhymes stated that the manager grabbed him by the neck and twisted his left arm around his back. The manager told other employees to call the police and began walking Mr. Rhymes to the office. Mr. Rhymes stated that the manager even tried to hit him at one point but was stopped by another employee. The Abbeville police arrived to question Mr. Rhymes. Another manager advised the police to release Mr. Rhymes who was not charged with any criminal offense.

[ 2Mr. Rhymes filed suit against Winn-Dixie on December 16, 2008. Mr. Rhymes claimed that he suffered physical and mental injuries as a result of the incident. Winn-Dixie answered, denying that Mr. Rhymes suffered any injuries and asserting that it was immune from civil liability pursuant to La.Code Crim.P. art. 215. Winn-Dixie then filed a motion for summary judgment. Judgment granting the motion for summary judgment was signed on May 20, 2010. Mr. Rhymes then filed the present appeal.

STANDARD OF REVIEW

Appellate courts review motions for summary judgment de novo to determine whether any genuine issue of material fact exists and whether the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). A motion for summary judgment shall 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 mover is entitled to judgment as a matter of law.” Id. The mover bears the initial burden of proof to show that no genuine issue of material fact exists. La. Code. Civ.P. art. 966(C)(2).

“Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.” Cheramie Servs., Inc. v. Shell Deepwater Prod., Inc., 09-1633, p. 9-10 (La.4/23/10), 35 So.3d 1053, 1059 (emphasis added).

DISCUSSION

At the center of this matter is La.Code Crim.P. art. 215(A)(1), which provides:

A peace officer, merchant, or a specifically authorized employee or agent of a merchant, may use reasonable force to detain a person for questioning on the merchant’s premises, for a length of time, not to exceed sixty minutes, unless it is reasonable under the circumstances 13that the person be detained longer, when he has reasonable cause to believe that the person has committed a theft of goods held for sale by the merchant, regardless of the actual value of the goods. The merchant or his employee or agent may also detain such a person for arrest by a peace officer. The detention shall not constitute an arrest.

Therefore, to be entitled to civil immunity, a merchant must show that:

(1) the person effecting the detention must be a peace officer, a merchant, or a specifically authorized employee of a merchant; (2) the party making the detention must have reasonable cause to believe that the detained person has committed theft; (3) unreasonable force may not be used in detaining the suspect for interrogation; (4) the detention must occur on the merchant’s premises; and (5) the detention may not last longer than sixty minutes.

Freeman v. Kar Way, Inc., 96-8, p. 4 (La.App. 8 Cir. 11/6/96), 686 So.2d 51, 53, writ not considered, 97-524 (La.4/18/97), 692 So.2d 429.

Mr. Rhymes claims that the granting of summary judgment was inappropriate as there is a question of material fact regarding whether the force used by the manager was reasonable. Mr. Rhymes argues that all of the actions by the store manager were beyond unreasonable. Mr. Rhymes also argues that whether or not the force used by the store was reasonable must be determined by a trier of fact at trial and is not an appropriate issue to be disposed of by summary judgment.

Summary judgment is ordinarily not an appropriate procedural device when there are issues that require the determination of the reasonableness of acts and conduct of parties under all the facts and circumstances. Wylie v. Peltier, 10-332 (La.App. 3 Cir. 11/3/10), 2010 WL 4325838.

In determining whether the force used by police officers in arresting plaintiffs was reasonable, the supreme court held that: “Whether the force used is reasonable depends upon the totality of the facts and circumstances in each case. A court must evaluate the officers’ actions against those of ordinary, prudent, and reasonable men placed in the same position as the officers and with the same knowledge as the officers.” Kyle v. City of New Orleans, 353 So.2d 969, 973 (La.1977); LaBauve v. State, 618 So.2d 1187 (La.App. 3 Cir.), writ denied, 624 So.2d 1235 (La.1993).

In support of its motion for summary judgment, Winn-Dixie submitted the deposition testimony of Mr. Rhymes. It claims that the store manager’s belief that Mr. Rhymes might escape justified his actions and that the restraint used was reasonable.

We do not know from the record what the store manager was thinking as there is no testimony or statements from anyone other than Mr. Rhymes. Based on Mr. Rhymes’ testimony alone, we find that there are questions of material fact as to whether the store manager’s actions in grabbing Mr. Rhymes by the neck and wrapping his arm behind his back constituted reasonable force under the circumstances of this case.

For the above reasons, the judgment of the trial court granting summary judgment in favor of Winn-Dixie Louisiana, Inc. is reversed. The case is remanded for further proceedings. Costs of this appeal are assessed to Winn-Dixie.

REVERSED AND REMANDED.


text:
    Herbert ISADORE d/b/a ExacTax v. INTERFACE SECURITY SYSTEMS and Its Insurer, XYZ Insurance Company.
    No. 10-1359.
    Court of Appeal of Louisiana, Third Circuit.
    March 9, 2011.
    Clifton J. Spears, Jr., A Professional Law Corporation, Alexandria, Louisiana, for PlaintiffAppellant, Frederick Kirk d/b/a ExacTax.
    Madeline J. Lee, Amy E. McGray, Bo-len, Parker, Brenner & Lee, Ltd, Alexandria, Louisiana, for Defendants/Appellees, Interface Security Systems, LLC, and Everest Indemnity Insurance Company.
    Court composed of BILLY H. EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| Frederick Kirk d/b/a ExacTax (Exac-Tax) appeals the trial court’s grant of summary judgment in favor of Interface Security Systems, LLC, and its insurer, Everest Indemnity Insurance Company (collectively Interface), decreeing a limitation of liability clause contained within the service agreement between the parties to be valid and enforceable, thereby limiting ExacTax’s recovery to $1,000.00. Interface filed an Answer to Appeal seeking an award of damages for ExacTax having filed a frivolous appeal. For the following reasons, we affirm the trial court’s grant of summary judgment, and we deny Interface’s claim for damages for frivolous appeal.

FACTS

On December 15, 2004, ExacTax and Interface entered into a Commercial Security Services Agreement (security agreement) wherein Interface was to provide a security system to ExacTax which would alert Interface of intrusions into ExacTax’s building. If an intrusion occurred, Interface was to notify the Alexandria Police Department and a representative of Exac-Tax of the incident. When the security system failed to signal intrusions on November 8, 2006, November 15, 2006, January 8, 2007, and January 31, 2007, relative to four separate and distinct burglaries, ExacTax filed suit for damages against Interface.

Interface filed a Motion for Summary Judgment relative to the validity and enforceability of the limitation of liability clause contained within the security ^agreement which limited Interface’s liability to the total sum of $1,000.00 collectively. The trial court granted summary judgment in favor of Interface. ExecTax appealed; Interface filed an Answer to Appeal.

ASSIGNMENT OF ERROR

The sole error presented by ExacTax for our review is whether the trial court erred in granting summary judgment in favor of Interface. In its Answer to Appeal, Interface seeks “an award of damages for frivolous appeal due to there being no serious, substantial or legitimate legal issues.”

LAW AND DISCUSSION

Motion for Summary Judgment

Interface’s Motion for Summary Judgment asserts that there are no genuine issues of material fact that the service agreement between it and ExacTax contains a valid and enforceable limitation of liability clause which serves to limit its liability to $1,000.00 collectively. The relevant contractual provision (emphasis added) reads, in pertinent part, as follows:

3. DISCLAIMERILIMITATION OF LIABILITY. CUSTOMER UNDERSTANDS AND AGREES AS FOLLOWS ... (V) SHOULD THERE ARISE ANY LIABILITY ON THE PART OF COMPANY OR REPRESENTATIVES FOR ECONOMIC LOSSES, PERSONAL INJURY, INCLUDING DEATH, OR PROPERTY DAMAGE (REAL OR PERSONAL) WHICH IS IN CONNECTION WITH, ARISES OUT OF OR FROM, RESULTS FROM, IS RELATED TO OR IS A CONSEQUENCE OF THE ACTIVE OR PASSIVE SOLE, JOINT OR SEVERAL NEGLIGENCE OF ANY KIND OR DEGREE OF COMPANY OR REPRESENTATIVES INCLUDING, WITHOUT LIMITATION, ACTS, ERRORS OR OMISSIONS WHICH OCCUR PRIOR TO, CONTEMPORANEOUSLY WITH OR SUBSEQUENT TO THE EXECUTION OF THIS AGREEMENT, OR BREACH OF THIS AGREEMENT, OR ANY CLAIM BROUGHT IN PRODUCT OR STRICT LIABILITY, SUBROGATION, CONTRIBUTION OR |,INDEMNIFICATION, WHETHER IN CONTRACT, TORT OR EQUITY, INCLUDING, WITHOUT LIMITATION, ANY GENERAL, DIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, STATUTORY OR CONSEQUENTIAL DAMAGES, IRRESPECTIVE OF CAUSE, SUCH LIABILITY SHALL BE LIMITED TO THE MAXIMUM SUM OF $1,000.00 COLLECTIVELY FOR COMPANY AND REPRESENTATIVES, AND THIS LIABILITY SHALL BE EXCLUSIVE.
IN THE EVENT THAT THE CUSTOMER WISHES TO INCREASE THE MAXIMUM AMOUNT OF SUCH LIMITED LIABILITY, CUSTOMER MAY, AS A MATTER OF RIGHT, OBTAIN A HIGHER LIMIT BY PAYING AN ADDITIONAL AMOUNT FOR THE INCREASE IN SUCH LIMIT OF LIABILITY, BUT THIS PAYMENT SHALL IN NO WAY BE INTERPRETED TO HOLD COMPANY OR REPRESENTATIVES AS AN INSURER.

In an effort to eschew this contractual provision, ExacTax asserts that genuine issues of material fact remain as to the alleged willful or deliberate acts of Interface, which it contends are not within the purview of the limitation of liability clause. ExacTax argues to this court that “[a]s long as one’s negligence does not cause physical injury to another, contractual provisions are valid to eliminate completely or to partially limit liability for losses due to negligence, but not for losses caused by intentional acts or gross fault.” Though ExacTax concedes that “[b]y its own terms, the contract exculpates [Interface] from liability for any losses, even if due to its negligent performance or failure to perform an obligation!,]” it concludes that “this language does not include willful failure to monitor the system or other deliberate disregard of a contractual duty.”

On appeal, we are mindful that our Louisiana Supreme Court has instructed us on the standard of review relative to a motion for summary judgment as follows:

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co., [06-363 (La.11/29/06)], 950 So.2d 544, [see La.Code Civ.P.] art. 966. A summary judgment is reviewed on appeal de novo, with the appellate court fusing the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Wright v. Louisiana Power & Light, [06-1181 (La.3/9/07) ], 951 So.2d 1058[]; King v. Parish National Bank, [04-337 (La.10/19/04) ], 885 So.2d 540, 545; Jones v. Estate of Santiago, [03-1424 (La.4/14/04) ], 870 So.2d 1002[.]
Samaba v. Rau, 07-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882-83 (footnote omitted). Louisiana Code of Civil Procedure Article 966(C)(2) provides:
The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to 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. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

Kerry v. Pearson, 10-103, pp. 4-5 (La.App. 3 Cir. 6/2/10), 40 So.3d 463, 466.

Thus, in the instant matter, Interface, as mover, bears the initial burden of proving its entitlement to summary judgment. In support of its motion, Interface offered the service agreement between the parties containing a limitation of liability clause, thereby meeting its initial burden. Having done so, the burden then shifts to |fiExacTax which bears the burden of proof at trial on its allegations that willful or deliberate acts of Interface negate the limitation of liability provision. In order to meet its burden of proof, ExacTax cannot merely rely on the allegations in its pleadings but must “produce factual support sufficient to establish that it will be able to satisfy [its] evidentiary burden of proof at trial.” La.Code Civ.P. art. 966(C)(2).

Pursuant to our de novo review of the record, we conclude that ExacTax failed to produce any evidence to establish that it will be able to prove any intentional acts or gross fault by Interface at trial. With nothing in the record to establish that it will be able to prove this element of its claim at trial, ExacTax has failed to carry its burden of producing evidence that a genuine issue of material fact remains. Accordingly, we find that Interface’s Motion for Summary Judgment was properly granted by the trial court.

Answer to Appeal

In its Answer to Appeal, Interface seeks an award of damages pursuant to La.Code Civ.P. art. 2164 for what it deems to be a frivolous appeal by ExacTax. Applying La.Code Civ.P. art. 2164, this court has stated the following:

Louisiana Code of Civil Procedure Article 2164 provides for an award of damages for frivolous appeal. Lack of merit to an appeal does not necessarily mean that the appeal is frivolous. Hershell Corp. v. Fireman’s Fund Ins. Co., 98-1352[ (]La.App. 3 Cir. 6/2/99); 743 So.2d 698. “Appeals are always favored and, unless the appeal is unquestionably frivolous, damages will not be allowed.” Hampton v. Greenfield, 618 So.2d 859, 862 (La.1993). “Damages for frivolous appeal are only allowed when ‘it is obvious that the appeal was taken solely for delay or that counsel is not sincere in the view of the law he advocates even though the court is of the opinion that such view is not meritorious.’ ” Id. (quoting Parker v. Interstate Life & Accident Ins. Co., 248 La. 449, 179 So.2d 634, 636-37 (1965)).

Broussard v. Union Pac. Res. Co., 00-1079, pp. 9-10 (La.App. 3 Cir. 1/31/01), 778 So.2d 1199, 1205, writ denied, 01-589 (La.4/27/01), 791 So.2d 118.

| fiAfter a thorough review of the record, we cannot say that ExacTax instituted the present appeal for the sole purpose of delay, nor do we find that counsel was insincere in the view of the law advocated. Based upon the record and mindful of the penal nature of an award of damages under this article, we do not find this appeal to be either devoid of merit or frivolous; therefore, we deny Interface’s claim for damages for frivolous appeal.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court granting summary judgment in favor of Interface Security Systems, LLC and Everest Indemnity Insurance Company. Further, we deny the claim of Interface Security Systems, LLC and Everest Indemnity Insurance Company against Frederick Kirk d/b/a Ex-acTax for damages for the filing of a frivolous appeal. All costs of these proceedings are assessed against Frederick Kirk d/b/a ExacTax.

AFFIRMED.

      . This suit originated with the filing of a Petition for Damages by Plaintiff, Herbert Isa-dore, who, according to the original pleading, was the owner and operator of ExacTax. By means of a First Supplemental and Amending Petition for Damages, the petition was amended to aver that Frederick Kirk was the owner of ExacTax. We note that although the caption of these proceedings was never formally amended, the trial court did sign an order providing that "FREDERICK KIRK d/b/a EXACTAX be substituted as a party plaintiff for Herbert Isadore d/b/a ExacTax.”

      . Although the Petition for Damages names "INTERFACE SECURITY SYSTEMS” as a Defendant, its Answer reflects that the proper name of the Defendant is "INTERFACE SECURITY SYSTEMS, LLC.”

      . The record also contains an exception and two previously filed Motions for Summary Judgment on behalf of Interface which are not relevant to the present appeal.

      . It is well settled in our jurisprudence that limitation of liability clauses, virtually identical to the clause in the present contract, are valid and not against public policy. Soileau & Coreil v. Trans-Western Publishing, 542 So.2d 198 (La.App. 3d Cir.1989); Louisiana Shoes, Inc. v. South Central Bell Telephone Company, 445 So.2d 1304 (La.App. 5th Cir.1984); Roll-Up Shutters, Inc. v. South Central Bell Telephone Co., 394 So.2d 796 (La.App. 4th Cir.), writ denied, 399 So.2d 599 (La.1981); Marino v. South Central Bell Telephone Company, 376 So.2d 1311 (La.App. 1st Cir.1979).

        Bonfiglio v. Bellsouth Adver. & Publ'g Corp., 619 So.2d 135, 136 (La.App. 1 Cir.), writ denied, 620 So.2d 864 (La.1993).


author: CARAWAY, J.

text:
    Sharnetta HOPKINS and Lisa George, Plaintiffs-Appellees v. Brian C. NOLA and Louisiana Farm Bureau Casualty Insurance Company, Defendants-Appellants.
    No. 46,114-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 9, 2011.
    Cotton, Bolton, Hoychick & Doughty, Rayville By John B. Hoychick, for Appellants.

      J. Antonio Tramontana, for Appellees.
    Before BROWN, STEWART and CARAWAY, JJ.
   CARAWAY, J.

|2The facts of this motor vehicle accident were disputed at the trial court. Finding that the trial court failed to consider important physical evidence, we reverse and assess 100% fault to the plaintiff-driver.

Facts

On January 17, 2008, Sharnetta Hopkins (“Hopkins”) and Lisa George (“George”) filed a joint petition for damages naming as defendants Brian C. Nola (“Nola”) and his liability insurer, Louisiana Farm Bureau Casualty Insurance Company (“Louisiana Farm”). In their petition, plaintiffs asserted that on the evening of December 21, 2007, Hopkins was driving her Pontiac Grand Am southbound on Cole Avenue in Monroe with George as a passenger, when Nola attempted to pass them. The petition then alleged that upon his reentry into plaintiffs’ lane of travel, the passenger side of Nola’s vehicle forcibly struck the front driver’s side of Hopkins’ vehicle. The petition further provides that Nola, who was driving a Chevrolet Silverado truck, was traveling at night with his headlights off. Plaintiffs prayed for damages arising from physical injuries as well as damages sustained to Hopkins’ automobile.

Defendants answered, denying plaintiffs’ allegations and claiming the accident was wholly attributable to the fault of plaintiff, Hopkins, for failing to stop at a stop sign applicable to the traffic on Desoto Street at the intersection with Cole Avenue. In further answering, defendants alleged, in the alternative, the comparative fault of Hopkins.

George subsequently withdrew her position as a co-plaintiff with Hopkins and retained separate counsel to represent her for her injuries in this accident. On December 18, 2008, George individually filed a “first amending petition,” to name Hopkins and her insurer, U.S. Agencies Insurance Company (“U.SAgencies”), as additional defendants. The amended petition alleged negligence on the part of Hopkins for: (1) failing to keep a proper lookout; (2) failing to follow standard traffic laws; and (3) driving in a reckless and unsafe manner with complete disregard for the safety and well-being of others. Nevertheless, on July 23, 2009, George dismissed Hopkins pursuant to a joint motion and order of voluntary partial dismissal.

|SA bench trial was commenced in March 2010. The trial court was presented with two versions of the accident. Plaintiffs testified that the collision took place as they were attempting to make a right turn into the parking lot of a Popeye’s Chicken located on Cole Avenue. Cole Avenue, which runs in a north/south direction, is parallel to Highway 165. These two thoroughfares are connected by Desoto Street, which runs east and west. Desoto Street is controlled by a stop sign at its intersection with Cole, giving drivers on Cole Avenue the right of way. There is a bank that sits directly south of the intersection on Cole Avenue. To the south of the bank from Cole Avenue, the Popeye’s Chicken sits adjacent to and connects with the rear of the bank’s parking lot at the other end of the block. According to plaintiffs, they had exited Highway 165 onto Desoto Street, turned right onto Cole Avenue, passed the bank and were attempting to make a right turn into the Popeye’s parking lot when the accident occurred. Plaintiffs contend that Nola sped through the intersection, attempted to pass Hopkins’ vehicle in the oncoming traffic lane of Cole and then re-entered their lane of travel too soon, causing the collision. Plaintiffs suggested that the force of the impact caused their vehicle to spin around two complete times. They contended that the vehicle traveled north from the actual site of impact, back toward the bank and the intersection of Cole and Desoto.

To the contrary, Nola testified that the accident occurred right at the intersection of Cole and Desoto. According to Nola, he was traveling south on Cole when Hopkins ran the stop sign at Desoto and turned right into his lane of traffic.

Following the presentation of evidence, the trial court returned a judgment in favor of the plaintiffs. The judgment assigned Nola 80 percent fault and assessed Hopkins with the remaining 20 percent. Hopkins was awarded $8,336.41 in stipulated special damages and $4,500 in general damages, and George was awarded $1,014.14 in stipulated special damages and $2,500 in general damages. All awards were subject to the trial court’s apportionment of fault.

In its reasons for judgment, the trial court gave the following observation regarding the testimony of the investigating police officer who ticketed Hopkins for running the stop sign:

L4... the court determines that the point of impact was south of the intersection and not in the intersection and does not find that Hopkins ran the stop sign. The investigating officer did not take any photographs, diagram the location of any debris from the accident and did not talk to all of the witnesses and therefore, did not aid the court in reaching a decision. Although Hopkins received and later paid the traffic citation out of the court, the payment per se is not dispositive of the issue of fault of liability.

From this judgment, defendants appeal.

Discussion

In civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard, which precludes the setting aside of a district court’s finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Cenac v. Public Access Water Rights Ass’n, 02-2660 (La.6/27/03), 851 So.2d 1006. To reverse a factfinder’s determination under this standard of review, an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes the finding is clearly wrong. Stobart v. State Dept. of Transp. and Dev., 617 So.2d 880 (La.1993). Ultimately, the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.

Where two reasonable views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stroik v. Ponseti, 96-2897 (La.9/9/97), 699 So.2d 1072 (emphasis in original). However, where documents or objective evidence so contradict a witness’s story, or the story itself is so inherently inconsistent or implausible on its face that a reasonable factfinder would not credit the witness’s story, a reviewing court may well find manifest error. Rosell v. ESCO, 549 So.2d 840 (La.1989); Brewer v. J.B. Hunt Transport, Inc., 09-1408 (La.3/16/10), 35 So.3d 230. Although deference to the factfinder should be accorded, |r,because appellate courts have a constitutional duty to review both law and facts, they have the right and obligation to determine whether a trial court verdict is clearly wrong based on evidence, or clearly without evidentiary support. Id.; Ambrose v. New Orleans Police Dep’t Ambulance Service, 93-3099 (La.7/5/94), 639 So.2d 216. Therefore, it is not the case that a trial court’s factual determinations “cannot ever, or hardly ever, be upset.” Id.

At trial, Hopkins testified that as she used her signal in turning into Popeye’s she “heard a loud roar.” She suddenly saw a truck and then felt the truck make contact with her vehicle. According to Hopkins, the force of the collision caused her vehicle to spin to the right two complete times and as it spun, it traveled north back toward the intersection. Consequently, Hopkins asserted that post-impact her vehicle came to rest in the middle of the bank’s parking lot. From photos showing the entire block along Cole between the bank and Popeye’s, the bank’s parking extended well behind the bank building with numerous parking spaces for turning in directly off of Cole and parking perpendicular to the street.

Hopkins additionally testified that the investigating officer, Officer Shawn Maynard, failed to listen to her version of what happened and as a result issued her a citation for running the Desoto Street stop sign. Although she admitted to receiving and paying a ticket for running the stop sign, she stated that she did so to avoid going to court and that her intent was not to admit guilt of the action alleged. Hopkins testified that her injuries consisted of pain to her knee, neck and back. Hopkins originally presented her injuries to the North Monroe Emergency Room where she received pain medication. She later sought treatment from Dr. J.D. Patterson, a primary care physician.

The plaintiffs also offered the testimony of Terry Butler, Hopkins’ husband, in order to corroborate Hopkins’ complaint against Officer Maynard. Butler testified that he arrived at the scene within five minutes of |fithe wreck and that Officer Maynard was already on location. He attempted to speak to the officer, but was told that he was interfering with the investigation and that he should step back or be arrested. Butler additionally testified that upon his arrival, the vehicles had not been moved. Butler was shown pictures of the intersection and asked where the vehicles ultimately came to a resting position. He testified that Hopkins’ vehicle was displaced to the center of the bank’s parking lot. He then identified Nola’s position as being within close proximity to the Popeye’s parking lot, although still within the boundaries of the bank’s parking lot.

George testified consistently with Hopkins’ recitation of how the accident took place. George placed the final resting position of Hopkins’ vehicle “like in the middle of the bank.” George also testified that the officer was telling them how the accident happened instead of asking questions. She stated that she was never asked for a statement and was not directed to fill out a witness statement form. George additionally testified that she saw Nola’s father arrive at the scene and kick debris in the street toward the intersection. As a result of the collision, George suffered from pain in both her chest and back. On the evening of the accident, she sought treatment from the North Monroe Emergency Room and later from Dr. Patterson.

In defense, Nola testified that Hopkins ran a stop sign and entered his lane of travel as he headed southbound on Cole Avenue. He averred that leading up to the accident, he was driving at a rate of 25 mph with his headlights illuminated. He was on his way to a party that was located on Cole Avenue, when he “saw her headlights out of [his] peripheral” and “by the time [he] noticed that she wasn’t stopping at that stop sign and that she was even there, there was nothing [he] could do.” Nola stated that his dad brought his proof of insurance to the scene, but that he never saw him kick debris. Nola’s testimony revealed that $3,200 of damage was done to his truck and that Hopkins’ insurer, U.S. Agencies, paid to have this damage repaired.

Officer Maynard reported in his testimony that he was familiar with the intersection of Cole and Desoto and that he had an independent recollection of this particular accident. He testified without reference to a |7police report. Nevertheless, he acknowledged his filing contemporaneously of a written report of the accident.

Officer Maynard arrived at the scene within three to four minutes and spoke with both drivers. Neither of the vehicles had been moved, and he observed that Hopkins’ vehicle came to rest on the cusp of the intersection and the bank’s parking lot. Officer Maynard identified the spot on a photograph of the intersection from Cole facing the bank. He drew an “x” on the photo just south of the intersection. At that point, the stop sign is seen in an area of grass, and the location of Hopkins’ vehicle as identified by the officer is only a few feet beyond the stop sign before the first parking space. That first bank parking space extends perpendicular to Cole and lies beyond the bank building toward Desoto.

When Officer Maynard was shown what plaintiffs identified as the final resting place of the vehicles (which was farther south from the intersection), he responded that this positioning was physically impossible considering where the debris from the accident was found. The majority of the debris, which was made up of broken headlight fixtures, was located south of the intersection, within 2 to 4 feet and strewn no further than a 10 to 12 foot radius. Additionally, he testified that during his investigation, Hopkins gave him two different accounts of the collision, making her a less credible "witness. Officer Maynard noted that at no point did he observe Nola’s father kicking debris toward the intersection. He asserted that Nola had the right of way on Cole Avenue, and it was the duty of Hopkins to stop at the stop sign and yield to oncoming traffic. Officer Maynard issued a citation to Hopkins for running the stop sign.

Upon cross examination, Officer Maynard admitted that he failed to document the location of the debris, did not take a written statement from George, and further failed to take any photographs of the accident scene. However, Officer Maynard ultimately concluded, based on his independent recollection, that the location of the debris was consistent with the final resting places of the vehicles. Furthermore, he described plaintiffs version of the wreck as “very unbelievable” since “her vehicle was nowhere close to turning nowhere into Popeye’s.” According to Officer Maynard, if her car had spun, the back tires would have gone through the debris, causing a ^visible trail. Such a delineation in the debris was not evidenced at the scene; the debris was simply scattered on the ground.

Finally, Officer Maynard testified that had Hopkins already made a turn onto Cole Avenue as she claimed, Nola would have rear-ended her, causing “more of a rear end swipe,” which would have inevitably caused more damage to the vehicles. Photographs of both vehicles, depicting the damage caused by the accident, were placed into evidence. The photos of defendant’s truck damage reveal that a large indentation was sustained directly at the extended cab section of the truck, located on the passenger side. There is a very slight scrape that extends from that indentation to the rear passenger side tire well. On the other hand, photos of Hopkins’ vehicle reveal that the front left headlight area was completely smashed and dislocated. Considerable damage was also incurred to the hood on the front driver’s side. Officer Maynard testified that this damage to the vehicle did not match Hopkins’ version of the accident, stating “if she had made it on Cole, he actually [would have] had to turn in front of her, you know, for it to be the damage on his vehicle.”

The defense submitted into evidence the deposition of Michael Wren, who was crossing Cole Avenue on foot a couple of blocks away, when he heard the collision take place. Wren, who did not actually see the accident unfold, testified that the vehicles came to a resting position within a car length of the Cole Avenue/ Desoto Street intersection. Wren disclosed that he did not approach the accident scene because he did not think it was of a serious nature and the police were quick to respond. It was not until later in the evening that he discovered Nola’s vehicle was involved in the accident. According to Wren, Nola later arrived at the party he was attending and appeared to be agitated and angry. Nola told Wren that he was not at fault for the accident and asked Wren if he would be a witness in the event a legal dispute later arose. At trial, however, Nola testified that he never asked Wren to stand as a witness on his behalf.

From our review of the evidence, we find that the trial court committed reversible error in its wholesale dismissal of Officer Maynard’s testimony due to deficiencies in his investigation of the accident. Officer Maynard identified the fact of his written accident report, yet testified from |9his memory and with reference to photos of the accident scene presented to him at trial. The plaintiffs did not attempt to offer the written report or cross-examine the officer directly on its contents to show that his memory of the accident at trial differed from the report. Therefore, the trial court’s articulation in its written ruling of perceived deficiencies is unfounded. The trial court’s ruling on its exclusion of the officer’s testimony furthermore was not expressed as a credibility assessment of Officer Maynard based upon a finding of untruthfulness or bias. Of all the witnesses, this officer, who was called by happenstance to the accident scene, had no connection with either side and was therefore the only impartial and unbiased witness who testified on the critical fact of the location of the collision.

This error by the trial court and our review of all of the evidence demonstrate to us that Hopkins’ denial of her violation of the stop sign and both plaintiffs’ account of the accident site near the Popeye’s entrance are contradicted entirely by the objective evidence. Officer Maynard placed the scene of the accident unquestionably at the intersection, and he acted contemporaneously in issuing the traffic citation to Hopkins. The evidence of the damage to the vehicles does not support Hopkins’ account that Nola passed her on the two-lane street and cut her off while re-entering their lane of travel.

Officer Maynard’s opinion testimony of the nature of the collision as reflected by the impact to the center of Nola’s truck was that Hopkins’ vehicle rammed the side of the truck while entering the intersection from Desoto. The photos of the actual damage to the vehicles are indisputable objective evidence that support that assessment and make Hopkins’ account implausible. Accordingly, we find that the objective evidence so contradicts the plaintiffs’ story that a reasonable factfinder would not credit that story. The ruling of the trial court was therefore clearly wrong and manifestly erroneous.

Accordingly, we find no fault on Nola as he traveled with the right of way on Cole Avenue. We reverse the judgment of the trial court dismissing plaintiffs’ claims. Costs of appeal are assessed to appellees.

REVERSED.

      . Office Maynard is now Trooper Shawn Maynard and is currently employed with the Louisiana State Police. At the time of the accident he was employed with the Monroe City Police Department.

      . We note that a guilty plea is an admission against interest that is relevant to proving fault in a civil case. Shephard on Behalf of Shepard v. Scheeler, 96-1690 (La. 10/21/97), 701 So.2d 1308; Harris v. Dunn, 45,619 (La.App.2d Cir.9/22/10), 48 So.3d 367. However, while a guilty plea is admissible, it is not conclusive evidence. American Medical Enterprises, Inc. v. Audubon Ins. Co., 05-2006 (La.App. 1st Cir.6/8/07), 964 So.2d 1022, writ denied, 07-1405 (La. 10/26/07), 966 So.2d 575.


author: AMY, Judge.

text:
    Roger CLARK v. Danny CLARK and Great Lakes Reinsurance (UK), PLC.
    No. 10-1281.
    Court of Appeal of Louisiana, Third Circuit.
    March 9, 2011.

      James A. Rowell, Travis L. Bourgeois, Degan, Blanchard & Nash, New Orleans, LA, for Defendant/Appellant, Great Lakes Reinsurance (UK), PLC.
    Joseph H. Jolissaint, Baton Rouge, LA, for Plaintiff/Appellee, Roger Clark.
    Court composed of MARC T. AMY, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   AMY, Judge.

hThe plaintiff brought suit against his son and his son’s alleged homeowner’s insurer for injuries sustained in a fall at the son’s home. The trial court confirmed a default judgment against both defendants. The insurer sought a new trial asserting that it had not been served with the original suit. The trial court denied the motion. The insurer appeals. For the following reasons, we reverse the denial of the motion for new trial and enter judgment granting the motion for new trial. We further reverse and vacate the default judgment in part and remand.

Factual and Procedural Background

Roger Clark filed this matter in August 2009 alleging that he sustained physical injuries while assisting his son, Danny Clark (Danny) in unloading a generator from the back of a pickup truck while at Danny’s home. The petition alleges that the injuries occurred while the plaintiff “was moving the generator along a ramp out of the back of a pickup truck on a ramp, ... [Danny] turned his wheelchair around coming in contact with the ramp.” The petition further provides that when the wheelchair “came in contact with the ramp it knocked the ramp out from under the plaintiff causing him and the generator to fall to the ground.” The plaintiff asserted that he sustained serious shoulder injuries requiring ongoing treatment. The plaintiff named Danny and his purported homeowner’s insurer, “Great Lakes Reinsurance Company” (Great Lakes) as defendants.

However, the defendants did not answer the petition, resulting in a preliminary default being entered in January 2010. With regard to the insurer, the motion for preliminary default asserted that “the defendant, Great Lakes Reinsurance Company, was served with the Petition for Damages through the Secretary of State on August | ¾31, 2009.” The citation with service information for the insurer was attached to the motion.

Following a February 5, 2010 hearing, at which the plaintiff presented evidence, the trial court confirmed the preliminary default and rendered judgment “in favor of the plaintiff and against the defendants!.]” It awarded the plaintiff $225,000.00 in general damages and $16,995.00 in special damages. The trial court signed the judgment on February 8, 2010. The Notice of Signing of Judgment indicates that “on the 8th day of Feb 2010, a Judgment was signed in the case and a certified copy mailed to all counsel of record and unrepresented parties on the 8th day of Feb 2010.”

Thereafter, on May 26, 2010, Great Lakes, appearing as Great Lakes Reinsurance (UK) PLC, filed a motion for new trial. It asserted that a new trial was appropriate since, it alleged, it did not receive notice of the suit until Danny’s insurance agent forwarded a copy of the default judgment and notice of signing of judgment. Thus, it argued that it had no opportunity to defend itself. Furthermore, it contended that the damages awarded exceeded the limits of the policy issued to Danny. Great Lakes also filed an answer at that time, acknowledging that it is a foreign corporation which may be served through the Louisiana Secretary of State. It conceded that it issued a policy to Danny, but alleged that its policy limits were [.^insufficient to satisfy the damages awarded in the default judgment. Great Lakes advanced other defenses as well, pointing to a policy exclusion and notice provisions that it alleged could preclude coverage. It also urged claims of prescription and comparative fault.

Following a hearing, the trial court denied the motion for new trial “on the merits.” Thereafter, Great Lakes sought and obtained a suspensive appeal from the February 8, 2010 default judgment and the July 13, 2010 judgment denying its motion for new trial. Great Lakes questions the correctness of each judgment in its brief to this court.

Discussion

Default Judgment

Great Lakes contends, in part, that the default judgment must be vacated and set aside, chiefly because it “was never legally served with citation of the instant lawsuit.” We address this issue in consideration of the denial of the motion for new trial. However, Great Lakes further questions the sufficiency of the plaintiffs evidence presented in support of the default judgment.

Louisiana Code of Civil Procedure Article 1701(A) provides that “[i]f a defendant in the principal or incidental demand fails to answer within the time prescribed by law, judgment by default may be entered against him.” This judgment “may be obtained by oral motion in open court or by written motion mailed by theRcourt, either of which shall be entered in the minutes of the court, but the judgment shall consist merely of an entry in the minutes.” Id. Thereafter, and in pertinent part, the default judgment may be confirmed as follows:

A. A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default....
B. (1) When a demand is based upon a conventional obligation, affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering judgment.
(2) When a demand is based upon a delictual obligation, the testimony of the plaintiff with corroborating evidence, which may be by affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering judgment.
D. When the demand is based upon a claim for a personal injury, a sworn narrative report of the treating physician or dentist may be offered in lieu of his testimony.

La.Code Civ.P. art. 1702. Insofar as Article 1702 requires that a default judgment be confirmed through the introduction of proof of the demand, it is similar to a trial. See Arias v. Stolthaven New Orleans, L.L.C., 08-1111 (La.5/5/09), 9 So.3d 815. On appeal, review of a default judgment “is restricted to determining the sufficiency of the evidence offered in support of the judgment.” Id. at 818. This determination is subject to the manifest error standard of review. Id.

The default judgment awarded general damages in the amount of $225,000.00 and special damages totaling $16,995.00 collectively against “the defendants.” R However, the plaintiffs evidence entered in support of the default judgment conflicts with the judgment insofar as Great Lakes’ liability is concerned. With regard to insur-anee coverage, the plaintiff submitted only a declaration page from the policy at issue and an attached policy coverage disclosure summary. The declaration page evidences a limit of liability in the amount of $100,000.00 for personal liability and medical payments in the amount of $500.00 per person and $25,000.00 per person. This document, alone, was insufficient to impose liability against the insurer.

In Arias, 9 So.3d 815, the supreme court addressed a default judgment entered against a liability insurer. It referenced several portions of La.R.S. 22:1269, which provides for an insured’s right of direct action against a liability insurer. It noted that the statute affords such a right to sue “within the terms and limits of the policy.” Id. at 823, quoting La.R.S. 22:1269. Accordingly, the supreme court concluded that, even in a case in which the insurer has answered the petition and denied liability, “the terms and conditions of the insurance policy are part of the principal basis for the claims and critical to establishing a prima facie case of the insurer’s liability[.]” Id. In Arias, a plaintiffs memorandum of insurance and accompanying correspondence were found to insufficiently disclose the terms and conditions of the policy so as to constitute a prima facie case of coverage and liability of the insurer in the absence of the policy itself. Id.

While the plaintiff did not submit the Great Lakes insurance policy in support of the default judgment, he contends that the judgment was supported by evidence other than the actual policy and cites Succession of Rock v. Allstate Life Ins. Co., 340 So.2d 1325 (La.1976) for that proposition. Indeed, the supreme court, in Succession of Rock, upheld the default judgment before it even though the actual insurance policy 1 tiwas not submitted. However, and as specifically explained in Arias, 9 So.3d at 824, the exception carved out by the Succession of Rock is applicable in “those limited instances where the admission of all essential contract provisions upon which a suit is based has been requested of the opposing party and, upon that party’s failure to answer, they have been deemed admitted.”

The exception enunciated in Succession of Rock, 340 So.2d 1325, is not applicable in this case. The plaintiff in that case was able to rely on unanswered requests for admissions as proof of the essential elements of the claim at issue. Id. However, the record in this case is slim, containing no requests for admissions that could be construed as admitting coverage in this case. We find no merit in the plaintiffs contention that Great Lakes’ answer and Great Lakes’ submission of the insurance policy at issue should be construed as satisfying the plaintiffs evidentiary burden of proving coverage within the terms and conditions of the policy at issue. Instead, these items were not filed into the record until Great Lakes filed its motion for new trial. Certainly, the trial court could not have relied on these at the time the default judgment was entered. The plaintiff cannot, after default judgment was entered, rely on those documents.

Additionally, the plaintiffs own evidence weighed against the default judgment insofar as it was entered against Great Lakes. As stated above, the declaration page revealed limits less than the amount of the judgment. Further, a three-page “Homeowners Insurance Policy Coverage Disclosure Summary” included in the exhibit specifically states that the insured must refer to the “insurance policy for complete policy terms and provisions[.]” Although the document lists flood and mold as “limitations or exclusions under this policy[,]” it further directs as follows: |v “For all other limitations or exclusions refer to your policy for complete details on terms and provisions.” Thus, the insurance policy was necessary in order for the plaintiff to satisfy its evidentiary burden for a finding of liability against Great Lakes as he was required to prove the terms and limits of the Great Lakes policy.

For this reason, we find that the trial court was manifestly erroneous in entering judgment against the insurer. We find that this error further warranted the granting of Great Lakes’ motion for new trial, as discussed below.

New Trial

Great Lakes’ sought a new trial under both La.Code Civ.P. arts.1972 and 1973. Article 1972 provides peremptory grounds for a new trial, instructing the trial court that: “A new trial shall be granted, upon contradictory motion of any party ... [w]hen the verdict or judgment appears clearly contrary to the law and the evidence.” Further, Article 1973 provides the discretionary grounds for the granting of a new trial and states that “[a] new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law.”

As explained above, the judgment appears clearly contrary to the law and evidence insofar as it cast Great Lakes in judgment absent the relevant policy and did so in an amount exceeding the only evidence of the policy limits. Thus, the trial court erred in failing to grant a new trial pursuant to La.Code Civ.P. art.1972.

Additionally, and with regard to Article 1973, the lack of clarity in the citation and service of the pertinent documents to Great Lakes warranted a new trial. The record indicates that service of the petition was made on “Great Lakes Reinsurance | ^Company” through the Secretary of State. The insurer is listed as such in the plaintiffs petition even though the declarations page submitted by the plaintiff into evidence clearly bears the name: “Great Lakes Reinsurance (UK) PLC.” Great Lakes appeared under this latter name at the time it filed its answer and its motion for new trial.

Also, in support of its motion for new trial, Great Lakes submitted the affidavit of the Deputy Manager of its claims agent who stated that, although procedures were in place which resulted in lawsuits being served on the insurer being forwarded to him for action, he “never received service of citation or the petition in this lawsuit.” Instead, he explained that he “was not aware of this lawsuit’s existence until 30 April, 2010, when [he] received a copy of the petition that had been faxed to Great Lakes Reinsurance by Danny Clark’s insurance agent.” He explained that, immediately thereafter, he contacted “U.S. legal counsel and forwarded the petition to them.”

This problem is compounded as the record fails to establish that the default judgment was ever appropriately served on Great Lakes. This issue also becomes relevant when considering the timeliness of the motion for new trial and, in turn, the timeliness of this appeal. Louisiana Code of Civil Procedure Article 1974 provides that the seven-day “delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913.” According to Article 1913(B), when the original citation and service of the action is through the Secretary of State, as was presumptively effectuated in this case, notice of the signing of the default judgment shall be made “by service on the secretary of state.” Yet, the record does not indicate that this service was made. While the notice of signing the default judgment indicates that a Incertified copy of the judgment was “mailed to all counsel of record and unrepresented parties[,]” it bears only one listing under the “copies sent” portion of the notice: “Joseph Jolissaint.” The record indicates that Mr. Jolissaint represented the plaintiff in the court below, as he does before this court. There is no further indication that service of the judgment was made on Great Lakes through the Secretary of State.

The plaintiff contended in his opposition to the motion for new trial that the motion was untimely because “Notice of the signing of the Judgment was provided to the defendant by Certified Letter to Great Lakes Reinsurance Company through the Secretary of State which was signed for on April 22, 2010 by Tara Pascal with the Secretary of State’s office.” In this regard, the plaintiff attached a April 21, 2010 cover letter from plaintiffs counsel to Great Lakes purportedly forwarding the default judgment. The certified mail receipt indicates that it was signed by “Tara Pascale.” However, other than the plaintiffs assertion in its opposition, the record contains no evidence linking this service to the Secretary of State’s office. Further, this letter, purportedly served on Great Lakes, is dated well over two months after the signing of the default judgment.

In addition to the ill-defined service and citation demonstrated in the record, Great Lakes alerted the trial court through its motion for new trial and its answer that the judgment arguably exceeded the policy limits and that it would urge coverage and comparative liability issues in a new trial. When considered collectively, these factors indicate that the trial court abused its discretion in denying the motion for new trial pursuant to La.Code Civ.P. art.1973.

| inFor these reasons, we reverse the denial of the motion for new trial and grant the motion. Further, we reverse and vacate the default judgment in part insofar as it cast judgment against Great Lakes. We remand for a new trial against Great Lakes.

DECREE

For the foregoing reasons, the judgment denying the motion for new trial of the appellant, Great Lakes Reinsurance (UK) PLC, dated July 13, 2010 is reversed and judgment granting that party’s motion for new trial is entered.

The default judgment, dated February 8, 2010, is reversed and vacated to the extent that it entered judgment against the appellant. The remainder of the default judgment, insofar as it relates to the remaining defendant, Danny Clark, is left undisturbed.

This matter is remanded for a limited new trial on the issue of the liability of Great Lakes Reinsurance (UK) PLC under the judgment and the extent thereof. All costs of this proceeding are assessed against the plaintiff, Roger Clark.

      .The Notice of Service provides, in part, as follows:

        Date of Service: TUESDAY, AUGUST 25, 2009

      Personal/Domiciliary: PERSONAL ON GREAT LAKES REINSURANCE COMPANY THROUGH THE SECRETARY OF STATE'S OFFICE
      The record also contains a Certificate of Deputy Clerk of Court certifying that service was made on "Great Lakes Reinsurance Company” through the "Secretary of State” on "August 25, 2009.”

      . The judgment does not enter judgment against the defendants by name.

      . Great Lakes also filed an application for supervisory writs seeking review of these judgments. These matters were consolidated for review. For disposition of the companion writ application, see Roger Clark v. Danny Clark and Great Lakes Reinsurance Company, 10-918 (La.App. 3 Cir.3/9/11), 58 So.3d 1087, 2011 WL 810755.

      . These dates make it appear that the motion for new trial was untimely. It would seemingly follow that this appeal would be untimely as well. However, as explained below, the date of service of the judgment on Great Lakes is unclear in the record. We consider both the motion for new trial and the resulting appeal as timely.

      . The other defendant cast in judgment, Danny Clark, did not appeal the default judgment entered against him. We do not consider the correctness of the trial court's entry of the default judgment against him. The disposition of this matter does not disturb that portion of the default judgment insofar as it relates to him.


text:
    Roger CLARK v. Danny CLARK and Great Lakes Reinsurance (UK), PLC.
    No. 10-918.
    Court of Appeal of Louisiana, Third Circuit.
    March 9, 2011.

      Sidney W. Degan, III, James A. Rowell, Travis L. Bourgeois, Carolyn C. Kolbe, Degan, Blanchard & Nash, New Orleans, LA, for Defendant/Applicant, Great Lakes Reinsurance (UK), PLC.
    Joseph H. Jolissaint, Baton Rouge, LA, for Plaintiff/Respondent, Roger Clark.
    Court composed of MARC T. AMY, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   AMY, Judge.

This matter was consolidated for review with an appeal lodged by the relator, Great Lakes Reinsurance (UK) PLC. For discussion and disposition of the companion appeal, see Roger Clark v. Danny Clark and Great Lakes Reinsurance Company, 10-1281 (La.App. 3 Cir.3/9/11), 58 So.3d 1081, 2011 WL 803774.

WRIT GRANTED. REVERSED IN PART; MOTION FOR NEW TRIAL GRANTED AND MADE PEREMPTORY; DEFAULT JUDGMENT REVERSED AND VACATED IN PART; REMANDED.