author: GASKINS, J.

text:
    CARTER ENTERPRISES, LLC, Plaintiff-Appellee v. SCOTT EQUIPMENT COMPANY, LLC, et al., Defendants-Appellants.
    No. 46,862-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 11, 2012.

      McNew, King, Mills, Burch & Landry, Monroe, LA, by Brady D. King, II, for Defendant-Appellant, Scott Equipment Company, LLC.
    Cook, Yancey, King & Galloway, Shreveport, LA, by Brian A. Homza, for Defendant>-Appellant, Volvo Construction Equipment North America, Inc.
    Colvin Law Firm, Shreveport, LA, by James Henry Colvin, Jr., Cole B. Smith, for Plaintiff-Appellee, Carter Enterprises, LLC and Third Party Defendant-Appel-lee, Top Dollar Scrap & Recovery, LLC.
    Before STEWART, GASKINS and DREW, JJ.
   GASKINS, J.

[¡The defendant, Scott Equipment Company, LLC (“Scott”), appeals from a trial court decision granting the plaintiff, Carter Enterprises, LLC (“Carter”), rescission of the sale of a scrap handler purchased from the defendant together with an award of attorney fees and court costs. Scott was given a credit for the value of the use, and Carter was ordered to return the scrap handler to the defendant. Scott also appeals the trial court grant of a post-trial motion for summary judgment dismissing its claim against Carter for the cost of engine repairs on the scrap handler. For the following reasons, we affirm in part and reverse in part the trial court judgment and remand for further proceedings.

FACTS

Barry Carter, the owner of Carter, had been involved in the logging business for many years and had purchased equipment from Scott in the past. Mr. Carter went into the scrap metal business and formed a new company, Top Dollar Scrap & Recover, LLC (“Top Dollar”). He talked with Burton Schieffler, a salesman with Scott, about the need for a scrap handler machine. Mr. Schieffler told Mr. Carter about a Volvo excavator that Scott had purchased from Volvo in 2006 and had previously rented to another company for 15 months for use as an excavator. He informed Mr. Carter that the excavator could be converted to a scrap handler. Scott purchased a cab, boom, grapple, and magnet from other suppliers and installed them on the excavator, converting it into a scrap handler. This work took several months.

li>Mr. Carter purchased the machine from Scott for $273,457.87, plus tax. The machine was delivered to Mr. Carter’s scrap yard in Homer, Louisiana, on April 10, 2008. Problems developed with the scrap handler almost immediately. The machine felt unstable to operators and sometimes the tracks came off. The pins on the grapple frequently broke, the air conditioning in the cab did not work properly, the turn motor to the grapple blew seals and lost hydraulic fluid. There were electrical problems affecting the generator and magnet. The machine developed difficulties with the engine which eventually necessitated its replacement. Scott came out to the scrap yard on numerous occasions to fix the machine, but the problems persisted. According to Carter, the scrap handler is still not usable. Carter would have used the machine approximately 300 hours per month. However, during the first six months Carter had the machine, it was only usable for about seven hours per month. Eventually, Scott refused to continue servicing the machine.

On June 15, 2009, Carter filed suit against Scott and Volvo Construction Equipment North America, Inc., claiming that the scrap handler had redhibitory vices and demanding a return of the purchase price, attorney fees, and all other necessary and equitable relief. Carter alleged that Scott and Volvo knew or should have known that the equipment was defective at the time of delivery and sale.

IsScott filed a reconventional demand against Carter and a third-party demand against Top Dollar, asserting that Carter owed $56,340.37 for replacement of the engine in the machine. Scott also sought to recover on the promissory note given in connection with the purchase of the scrap handler.

Volvo filed a motion for summary judgment, claiming among other things that the plaintiff had no proof of any claim against Volvo for redhibition. Volvo asserted that any defects in the machine were caused by the intervening act of a third party. Scott also filed a motion for summary judgment, seeking to dismiss Carter’s claim for recovery on the engine, turbocharger, and track malfunctions as well as the claims regarding the configuration and specification of the component parts used in the conversion process. Scott argued that there was no showing that there were any defects in the engine, turbocharger, or tracks when the excavator was delivered to Scott from Volvo in 2006.

On September 9, 2010, the trial court held a hearing on various exceptions and motions filed by the parties. The trial court granted in part Volvo’s motion for summary judgment dismissing with prejudice all redhibition claims arising out of or relating to the conversion of the machine, reserving any rights that might exist against Volvo in warranty. The trial court bifurcated the issue of Scott’s reconven-tional and third-party demand and reserved to Carter and to Scott the right to bring a claim in warranty regarding the repair cost of $56,340.37 for the replacement of the engine in 2009. Volvo reserved any objections, defenses, and limitations to any claim |4for warranty. Scott’s motion for summary judgment seeking to dismiss Carter’s claim for recovery on the engine, turbocharger, and track malfunctions was denied.

Trial on the merits was held on October 12,13, and 14, 2010. On January 31, 2011, the trial court signed and filed a judgment in favor of Carter and against Scott, finding that the machine had redhibitory defects and ordering the rescission of the sale of the scrap handler. Scott was ordered to pay Carter $320,094.60, together with attorney fees, court costs, and interest and Carter was ordered to return the scrap handler to Scott. Scott was given a credit for the use of the machine by Carter in the amount of $17,366.

The trial court filed written reasons for judgment. The court found that the excavator originally purchased by Scott was converted by that company into a scrap handler. Scott ordered component parts from various manufacturers including a cab, boom, large counterweight, and a grapple magnet assembly. Scott installed the parts, converting the excavator into a scrap handler. The retrofitting took two months and the converted scrap handler was delivered to Mr. Carter’s scrap yard. Calvin Allen, a heavy equipment operator with Carter and the main operator of the scrap handler, began experiencing problems with the machine immediately. The pins in the grapple assembly broke, causing it to disconnect from the scrap handler. The turn motor in the-grapple was not working properly and began leaking. The air conditioner in the- cab malfunctioned. Technicians from Scott were dispatched to address the problems with the scrap handler. Scott technicians | Stestified that Scott over-pressurized the hydraulic system during the conversion process.

The trial court found that within the first six months after delivery, Scott made 20 service calls to the plaintiffs scrap yard. Cost of repairs made during that time was $17,371.02. It does -not appear that Carter was actually billed for this amount. The repairs did not resolve the problems. The scrap handler was used for only 46 hours in the first six months after delivery to the plaintiff.

In its opinion, the trial court observed that in April 2009, approximately one year after the delivery of the machine, the engine lost pressure and started smoking. Mr. Carter bought a new turbocharger from Scott and had it installed on the machine. This did not alleviate the problem and the engine had to be replaced. The. engine was not replaced until May 29, 2009. The court noted that Mr. .Carter stopped using the scrap handler for a period of time and stopped paying the note on the machine, hoping that Volvo would take it back. When Volvo refused to take the machine back, the plaintiff brought the note current and put the machine back into use. It began consuming huge quantities of oil, using 55 gallons over a four-day period. Scott refused to make any more repairs on the machine and Mr. Carter began using it less.

The hour meter on the machine showed that, prior to the sale to Carter and while it was being leased as an excavator, it was used for 1,002 hours over a 15-month period. The court found that this amounted to use for 66.8 hours per month. After it was sold to the plaintiff, it was used an average of | (¡7.67 hours per month. The hour meter eventually stopped working, as did the VCAD (Volvo Computer Aided Diagnostic) system on the machine which would have recorded the time the machine was used. The court found that the scrap handler still has problems with the cab’s air conditioning, the pins in the grapple mechanism, weak power in the magnet, and abnormal hydraulic leaks. The - engine operates at only one speed, the engine lacks power, the tracks pop off when the cab is perpendicular to them and the boom is extended, and the cab is top-heavy and unsteady.

The trial court discounted Scott’s claim that the problems with the scrap handler were caused by operator misuse and lack of proper maintenance. The court found that, with almost 30 service reports generated by Scott in the first six months the machine was in the possession of Carter, none of the reports show that the problems were caused by Carter or its employees. One of the reports filled out by a Scott technician showed that the machine was a “lemon” and “haunted.” The record also showed that the machine was regularly and properly maintained.

According to the trial court, Carter claimed that the machine had redhibitory defects that existed at the time Carter purchased it, and that Scott breached its implied warranty by selling a scrap handler that was not fit for the intended purpose. The court found that Carter proved that Scott had reason to know the particular use that Carter intended for the thing or Carter’s purpose for buying the thing and that Carter relied on Scott’s skill or judgment in selecting it. The court also determined that the problems with the scrap handler were apparent on the date of delivery and continued | thereafter until present, despite Scott’s attempts to correct the problems. The trial court stated that Carter proved that the scrap handler was so useless and its use so inconvenient that Carter would never have bought it had it known of the defects.

The court determined that the problems with the machine were the result of Scott’s conversion, not as a result of Volvo’s manufacture of the excavator. The trial court found, that because of the conversion work done by Scott, it was the manufacturer of the scrap handler and was deemed to know that the machine had a redhibitory defect.

The court ruled that the sale be rescinded and that Scott was liable to Carter for the return of the purchase price with interest, for reimbursement of reasonable expenses occasioned by the sale and incurred for the preservation of the machine, and for damages and attorney fees. However, the court reduced the amount to be paid by Scott by the value of Carter’s use of the machine. The court determined that this amount was $17,366.

Carter requested that attorney fees be awarded in the amount of its contract fixed with its attorney, 40 percent of any amount recovered in the lawsuit. The tidal court found that calculating the attorney fees in this manner would result in an award that appeared to be inordinately high. The trial court stated that the amount of the attorney fee award would be based on the submission by the plaintiffs attorney of an affidavit showing hourly rates and the amoünt of work done in this matter.

Carter filed several post-trial motions. These included a motion for new trial for the limited purpose of quantifying the plaintiffs attorney fees |sand a motion to tax the costs of a deposition. Carter also filed a motion for summary judgment on Scott’s reeonventional demand against Carter and third-party demand against Top Dollar, seeking to recover for the cost of repairs to the engine in the amount of $56,340.37.

A hearing was held' on March 14, 2011, on the plaintiffs motion to tax costs and the motion for summary judgment. The trial court awarded costs to Carter and granted summary judgment in favor of Carter and against Scott, dismissing Scott’s claim to recover for the cost of engine repairs.

An evidentiary hearing was scheduled for April 7, 2011, on the issue, of attorney fees. Carter’s counsel appeared before the court and it was agreed that the parties waived their appearance and submitted the matter on the basis of the suit record and the evidentiary submissions of each party. Carter’s counsel filed an affidavit requesting $90,000 in attorney fees. The transcript reflects that the trial court signed the final judgment at that time, awarding that amount in attorney fees. Scott appealed from the trial court judgment.

REDHIBITION, RESCISSION OR REDUCTION, AND CREDIT FOR USE

Scott essentially argues that the trial court erred in finding that the scrap handler had redhibitory defects. Scott further contends that, if the scrap handler had redhibitory defects, they warranted only a reduction in the price and not a rescission of the sale. Scott urges that it should have received 19a greater credit for the value of the use of the machine. These arguments are without merit.

Legal Principies

A seller warrants the buyer against red-hibitory defects, or vices, in the thing sold. A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed the buyer would not have bought the thing if he had known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale. La. C.C. art. 2520. The seller owes no warranty for defects in the thing that were known to the buyer at the time of the sale, or for defects that should have been discovered by a reasonably prudent buyer of such things. La. C.C. art. 2521.

The thing sold must be reasonably fit for its ordinary use. When the seller has reason to know the particular use the buyer intends for the thing, or the buyer’s particular purpose for buying the thing, and that the buyer is relying on the seller’s skill or judgment in selecting it, the thing sold must be fit for the buyer’s intended use or for his particular purpose. If the thing is not so fit, the buyer’s rights are governed by the general rules of conventional obligations. La. C.C. art. 2524.

La. C.C. art. 2530 provides that if the vice has made its appearance within three days immediately following the sale, it is presumed to have existed before the sale. In all sales transactions, the seller impliedly warrants that the thing sold is free of redhibitory defects and is reasonably fit for its intended purpose. Gaston v. Bobby Johnson Equipment Company, Inc., 34,-028 (La.App.2d Cir.11/3/00), 771 So.2d 848.

| ¶Although this warranty does not apply as extensively as with new products, it requires that even used equipment operate reasonably well for a reasonable period of time. Gaston v. Bobby Johnson Equipment Company, Inc., supra; Ross v. Premier Imports, 96-2577 (La.App. 1st Cir.11/7/97), 704 So.2d 17, unit denied, 97-3035 (La.2/13/98), 709 So.2d 750; Crow v. Laurie, 98-0648 (La.App. 1st Cir.2/19/99), 729 So.2d 703.

The existence of a redhibitory defect is a question of fact which should not be disturbed in the absence of manifest error or abuse of the factfinder’s wide discretion. Ford Motor Credit v. Laing, 30,160 (La.App.2d Cir.1/21/98), 705 So.2d 1283; Gaston v. Bobby Johnson Equipment Company, Inc., supra; Rodriguez v. Chrysler Group LLC, 2011-524 (La.App. 3d Cir.11/2/11), 76 So.3d 1279. Consequently, an appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Rodriguez v. Chrysler Group LLC, supra. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989).

Discussion

Scott claims that the plaintiff provided the specifications and requirements for the machine such as the cab height, boom length, and size of the grapple and magnet. These items were purchased from various Inmanufacturers and installed on the excavator to convert it into a scrap handler. Scott maintains that the work it did on the machine was limited and did not constitute a major modification of the equipment. Specifically, Scott points out that no modifications were done to the track system, solenoid, hydraulic pump, or the engine, all areas that Carter has asserted have defects. Scott claims that all the modifications were done correctly and the machine was properly configured. It argues that representatives from Carter inspected the modifications throughout the process. Scott denies that the machine was unstable.

Scott claims that the problems with the machine were not redhibitory, but if they were, they justified a reduction in the price and not a rescission of the sale. While there were initially problems with the air conditioner, grapple motor, and magnet, Scott claims that all of these were remedied within a few weeks or months of delivery of the machine. Scott contends that the engine failure was due to normal wear and tear and due to the improper installation of a turbocharger. Further, Scott claims that Carter used the machine at least three to five hours per day and therefore, Scott should have been awarded a greater credit for use of the machine.

The record shows that Barry Carter, owner of the plaintiff company, went to Scott and enlisted its aid in finding a scrap handler. Scott was aware of the purpose of the machine and the use for which it was intended. Scott owned the excavator used here and proposed modifications to convert it to a scrap handler. The conversion of the machine took several months and problems with the machine surfaced almost immediately after delivery. Mr. 112Carter testified that the pins in the grapple broke and that this problem is still occurring. The air conditioner did not work properly. The turn motor on the grapple would blow seals and lose hydraulic fluid. Mr. Carter said that Scott over-pressurized the hydraulic system and that the turn motor is still leaking. The magnet had low voltage and Scott’s technician determined that electrical wires leading to the magnet had been improperly spliced.

Mr. Carter testified that he was only able to use the machine for approximately seven hours per month during the first six months he had the machine. If it had been fully operational, he claims that he would have used it 300 hours per month. The hour meter and another device for measuring the amount of use of the equipment ceased to function.

Mr. Carter said that 20 service calls were placed to Scott during the six months after the machine was delivered to Carter. According to Mr. Carter, none of the technicians from Scott ever indicated that Carter or its employees were misusing or abusing the machine or failing to maintain it properly. Mr. Cater testified that he saw the tracks off the machine at one time.

John Thomas Kuster, a former employee of Scott, testified as an expert in diesel mechanics, hydraulic systems, diagnosis, repair, and servicing of heavy lifting equipment, including the use, operations and capacities of that equipment. He stated that he worked on the machine on a number of occasions. He said that the hydraulic system was over-pressurized during the conversion process, causing problems with the turn motor on the grapple. After repairs, hydraulic leaks continued. Mr. Kus-ter testified that the air conditioning failed because particles used for sandblasting during the | ^modification process got into the system. Mr. Kuster acknowledged that there was low electrical voltage to the magnet which limited the use of the machine. This was caused by multiple splices made to the electrical wiring during the conversion process. After several attempts, the wiring was repaired.

Mr. Kuster stated that he became frustrated with the machine and on one repair form dealing with the cause of the problem, he inserted two boxes of his own and labeled them “lemon” and “haunted.” He testified that the machine was not fit for its intended use as a scrap handler. Mr. Kuster also stated that the machine was not stable. He testified that there was no indication that Carter caused any of the problems.

Calvin Allen, the equipment operator for Carter, testified that the machine swayed and felt unstable. He acknowledged that after using the machine, he became used to the movement. He stated that pins holding the grapple motor in place began to break almost immediately. Problems with the turn motor persist. There were extensive problems with the air conditioner and, according to Mr. Allen, it still does not work satisfactorily.

Mr. Allen said that the magnet has low power and will not pick up much. He claimed that the cable going to the generator caught on fire. Mr. Allen testified that the machine uses large amounts of hydraulic fluid. He also stated that the tracks came off the machine.

Burton Schieffler, the salesman for Scott who sold the scrap handler to Carter, stated that converting equipment is often done in the industry. He said that Carter relied on him to come up with the specifications for the |umachine. He denied that the machine was unsteady. He agreed that there was no showing that Carter abused the scrap handler. Mr. Schieffler testified that with the degree of conversion done in this case, he did not think that 20 service calls in the first six months after delivery was excessive.

Rene Sanchez, a former employee of Scott, testified as an expert in the same areas as Mr. Kuster. He said that he worked on the conversion of the machine. He denied that the machine was unsteady. He stated that it was necessary to splice some of the wiring used in the conversion.

Richard Adams, an employee of Scott, testified as an expert and stated that he worked on the scrap handler and denied that it was unstable. He repaired a hydraulic leak to the grapple, fixed the turn motor and corrected an over-pressurization. He did not feel that there were serious mechanical problems with the scrap handler.

Matthew Michael Murphy, a field service technician with Scott, testified as an expert. He examined the machine at Carter’s scrap yard in February 2010. The machine was in use when he arrived and he stated that it seemed to be working fine.

In this matter, there was extensive testimony and evidence concerning the conversion of the Volvo excavator into a scrap handler, its sale to Carter, and the problems that arose after the conversion. While Scott denied the existence of redhi-bitory defects, the record shows that the machine underwent an extensive conversion, done by Scott, and that Scott’s personnel were integral in configuring the machine, finding necessary parts and installing those components. The scrap handler had problems almost | ^immediately upon delivery including broken pins in the grapple, air-conditioning problems, hydraulic leaks, low voltage to the magnet, problems with the tracks, and complaints of instability. There was testimony that these problems were persistent and prevented Carter from being able to depend upon the machine for its intended use and purpose as a scrap handler.

The trial court made a credibility determination in this case and concluded that the scrap handler had redhibitory defects. The trial court did not err in concluding that the defects warranted a rescission of the purchase price.

Scott argues that it should have been given a larger credit for Carter’s use of the scrap handler. It cites deposition testimony of Mr. Carter that the plaintiff used the scrap handler three to five hours per day up until the installation of the second engine. At that point, Carter made a decision not to use the machine. Scott contends this decision was not because of operational problems. Scott also points out that on several occasions when its technicians went to the scrap yard to service the machine, they had to wait for the operator to finish using it. Scott also claims that the service records show that on most occasions, there was no mechanical reason for the scrap handler not to be operating and it was operational and able to perform.

The trial court also made a credibility determination on this issue. Although Scott argues that the machine was used extensively by Carter, the record shows that it was used for only a few hours per month due to the extensive defects. The very devices used for measuring the amount of use on this machine failed. The trial court’s finding as to the amount of time the |1fimachine was actually used was based upon testimony in the record. The trial court’s finding of fact in this regard is not manifestly erroneous or clearly ■wrong.

MANUFACTURER AND ATTORNEY FEES

Scott argues that, if Carter is entitled to rescission, it is not entitled to attorney fees. Scott contends that it is not the manufacturer of the original piece of equipment. It maintains that the modifications to the machine were not a significant conversion. Scott urges that the core components of the unit were not converted or modified. This argument is without merit.

Legal Principles

A seller who knows that the thing he sells has a defect but omits to declare it, or a seller who declares that the thing has a quality that he knows it does not have, is liable to the buyer for the return of the price with interest from the time it was paid, for the reimbursement of the reasonable expenses occasioned by the sale and those incurred for the preservation of the thing, and also for damages and reasonable attorney fees. If the use made of the thing, or the fruits it might have yielded, were of some value to the buyer, such a seller may be allowed credit for such use or fruits. A seller is deemed to know that the thing he sells has a redhibitory defect when he is a manufacturer of that thing. La. C.C. art. 2545. See also Tucker v. Petroleum Helicopters, Inc., 2008-1019 (La.App. 4th Cir.3/23/09), 9 So.3d 966, writ denied, 2009-0901 (La.6/19/09), 10 So.3d 736.

Where a retailer sells and, as a part of the sale, installs a thing, and that installation is defective, the seller is held to the same standard as a | ^manufacturer and is presumed to know of the defect in the installation. Credeur v. Champion Homes of Boaz, Inc., 2008-1096 (La.App. 3d Cir.3/4/09) 6 So.3d 339, writ denied, 2009-1099 (La.9/4/09), 17 So.3d 965. A “manufacturer” is defined in La. R.S. 9:2800.53 which provides in pertinent part:

(1) “Manufacturer” means a person or entity who is in the business of manufacturing a product for placement into trade or commerce. “Manufacturing a product” means producing, making, fabricating, constructing, designing, re-manufacturing, reconditioning or refurbishing a product. “Manufacturer” also means:
(a) A person or entity who labels a product as his own or who otherwise holds himself out to be the manufacturer of the product.
(b) A seller of a product who exercises control over or influences a characteristic of the design, construction or quality of the product that causes damage.
(c) A manufacturer of a product who incorporates into the product a component or part manufactured by another manufacturer.

In a redhibition action, reasonable attorney fees are awarded to justly compensate plaintiffs who succeed in establishing liability on the part of a bad faith seller under La. C.C. art. 2545. A manufacturer is conclusively presumed to have knowledge of defects in the object it produces. Since the manufacturer’s knowledge is conclusively presumed, the manufacturer is deemed to be in bad faith in selling a defective product and is liable to the buyer for damages and attorney fees, in addition to the purchase price and expenses occasioned by the sale. Gaston v. Bobby Johnson Equipment Company, Inc. supra.

11sWhile the trial court has great discretion in awarding attorney fees in a redhibition case, such an award must be reasonable, based upon the degree of skill and work involved in the case, the number of court appearances, depositions, and the office work involved. Ollis v. Miller, 39,-087 (La.App.2d Cir.10/29/04), 886 So.2d 1199.

Scott contends that it is a seller in good faith and not a manufacturer and should not be liable for attorney fees. If an attorney fee is awarded, Scott claims that the award is excessive because much of the time of Carter’s attorney was spent pursuing the claim against Volvo.

Discussion

In this matter, the record shows that Carter informed Scott that it was seeking a scrap handler. Scott owned the Volvo excavator and proposed a conversion of the machine to a scrap handler. The cab, boom, magnet, and grapple were purchased by Scott from various suppliers and were installed by Scott onto the machine. The conversion took approximately two months. These facts support the trial court’s finding that Scott was a manufacturer of the scrap handler, that the machine had redhibitory defects, and that Scott was liable to Garter for attorney fees.

Carter’s attorneys submitted an affidavit showing that four attorneys and a paralegal from the law firm worked on the case. The affidavit outlined the rates and the number of hours worked. The attorneys pointed out that the | i3case involved 10 depositions, multiple hearings, and a three-day bench trial. The attorney fees totaled $90,579.50. At the hearing to set the attorney fees, one of Carter’s attorneys stated:

[PLAINTIFF’S ATTORNEY]: Your Honor, my affidavit has $90,000 in legal fees, and as my affidavit makes out, we had multiple depositions and multiple things going on in that case and also a three day trial....
COURT: $90,000.00?
[PLAINTIFF’S ATTORNEY]: Yes, Ma’am....
COURT: I have signed the judgment. The amount is $90,000.00.

In this matter, there is no showing that this fee is excessive. The trial court award is affirmed.

ENGINE REPAIR

Scott asserts that the trial court erred in granting summary judgment in favor of Carter, finding that Scott is not entitled to reimbursement for the cost of the replacement engine. According to Scott, this repair was necessitated by the negligent installation of a turbocharger by Carter, not because of a redhibitory defect existing at the time of the sale. This argument has merit.

Legal Principles

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. Samaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880; Amos v. Crouch, 46,456 (La.App.2d Cir.6/29/11), 71 So.3d 1053.

| ggAppellate courts review summary judgments de novo, under the same criteria that govern a district court’s consideration of whether summary judgment is appropriate. Jenkins v. Willis Knighton Medical Center, 43,254 (La.App.2d Cir.6/4/08), 986 So.2d 247. A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). A fact is material if its existence or nonexistence may be essential to the plaintiff’s cause of action under the applicable theory of recovery. Amos v. Crouch, supra.

Summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2); Jenkins v. Willis Knighton Medical Center, supra. The party opposing summary judgment cannot rest on the mere allegations or denials in his pleadings, but must show that he has evidence which, if believed, could satisfy his evidentiary burden of proof at trial. If he has no such evidence, then there is no genuine issue of material fact, and the movant is entitled to summary judgment. La. C.C.P. art. 966(C)(2); Jenkins v. Willis Knighton Medical Center, supra.

The moving party bears the burden of proof. However, when he will not bear the burden of proof at trial on the matter before the court on summary judgment, the movant is not required to negate all essential elements of the adverse party’s claim; he need only point out an absence of factual support for one or more essential elements of the adverse party’s | ⅞, claim. If the adverse party then fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact and summary judgment is appropriate. La. C.C.P. art. 966(C)(2). Russell v. Eye Associates of Northeast Louisiana, 46,525 (La.App.2d Cir.9/21/11), 74 So.3d 230.

Discussion

Scott filed a reconventional demand against Carter alleging that in May 2009, Scott placed an engine in the scrap handler at a cost of $56,340.37, and that Carter had not paid for the engine. This issue was bifurcated from the issue of redhibi-tory defects. However, at the trial on the main demand, the trial court heard some testimony concerning the failure of the engine in the scrap handler and its replacement.

Mr. Carter testified at trial that on April 22, 2009, the engine “ran away” and he thought the turbocharger was bad. He took the turbocharger off the scrap handler and took it to Scott. An employee there confirmed that the turbocharger was bad. He purchased a new turbocharger from Scott and was instructed to be sure all the pieces of the old turbocharger were cleaned out of the engine before starting it up with the new turbocharger. He stated that his diesel mechanic, Dennis Dance, looked for the missing pieces, but found none. However, after Mr. Dance installed the new turbocharger, the engine worked for a few minutes and was shut down. When the engine was started up again, it failed. Scott replaced the engine. Mr. Carter stated that originally Scott indicated that the engine replacement was covered by the |22warranty with Volvo. However, after Carter filed its suit, for redhibition, Scott filed a claim against Carter for the cost of the engine replacement.

Mr. Dance testified that he replaced the turbocharger on the scrap handler. He said that the impeller had come apart inside the turbocharger. He was concerned because he could not find all the pieces to the impeller. He said that he blew everything out and looked everywhere, but could not find the missing pieces of the impeller. He called Scott and inquired about where to look for the pieces. After he replaced the turbocharger, the engine idled for 10 to 15 minutes and then he shut it off. After he left, employees at Carter started the machine again and the engine failed.

Richard Adams, a Scott employee, testified that he did some repairs on the scrap handler. Mr. Adams said that Scott was informed that Carter’s mechanic had replaced the turbocharger on the machine and that it would not run. According to Mr. Adams, the turbocharger was not properly connected and metal and oil had gotten on a piston and locked up the engine. Mr. Adams testified that the turbocharger was connected with only two bolts when there should have been four. He stated that Mr. Allen told him that when the turbocharger was being installed, there was a fire near the machine, so the scrap handler was cranked up and moved about 40 feet.

Mr. Adams replaced the engine. He testified that he was not aware of any complaints with the new engine after it was installed. However, he was shown a service report where an oil leak in the new engine was repaired by Scott.

laaOn February 22, 2011, after the trial court rendered judgment on the main demand, finding that the scrap handler had redhibitory vices, Carter filed a post-trial motion for summary judgment seeking to dismiss Scott’s reconventional demand against Carter and third party demand against Top Dollar Scrap & Recovery, LLC, for recovery of the cost of the engine replacement. Carter argued that the trial court’s ruling that the scrap handler was redhibitory was “law of the case.” Because the trial court had already found that the machine was redhibitory and that Scott was responsible for expenses incurred in connection with it, Carter should not be liable for the cost associated with the replacement of the engine in the scrap handler.

A hearing was held on several issues including Carter’s motion for summary judgment to dismiss Scott’s claim for the cost of replacing the engine. Carter argued that, because the trial court ruled that the entire machine had redhibitory defects necessitating rescission of the sale, it would be incongruous to hold open for further consideration whether and to what extent Carter should have to bear the expenses associated with replacing the engine. According to Carter, the principles of redhibition allow for recovery not only of the cost of the sale, but all expenses related thereto. Carter did not pay the cost of the engine replacement because there was a dispute as to whether the engine was under warranty. Carter claimed that, where the entire machine has been declared redhibitory, it would violate the principles of redhibition and the law of the case doctrine to require Carter to pay the cost of replacing the engine in a redhi-bitory machine.

[ 24Scott argued that there were no problems with the original engine until after it had been in service for one year at Carter’s scrap yard. Scott contended that the engine was not redhibitory, and that the damage to the engine which required its replacement was caused by Carter’s mechanic incorrectly installing a turbocharger. Scott claimed that there is a genuine issue of material fact as to whether there was any defect in the engine at the time of delivery of the machine. Scott also pointed out that it did not modify the engine in any way during the conversion process.

The trial court granted Carter’s motion for summary judgment, dismissing Scott’s claim to recover the cost of replacing the engine. According to the trial court, it should have stated in the judgment that all claims not considered were denied. The trial court noted that in formulating its reasons for judgment, it never gave much thought to the engine problems because it intended to declare the entire machine to be redhibitory instead of considering “parts and bits of it.” The trial court stated that it was not going to parse out the engine from the rest of the machine. Therefore, the claim by Scott seeking to recover the cost of replacing the engine was denied. Any claims that Scott may have against Volvo arising out of the engine failure were reserved to Scott. Scott urges on appeal that the trial court erred in granting the motion for summary judgment in favor of Carter on this issue.

Carter argued that, because the scrap handler had redhibitory vices necessitating a rescission of the sale and a return of the machine to Scott, Scott was responsible for expenses connected with the machine. La. C.C. art. 2545 provides that a bad faith seller or a manufacturer of a product with 1 Ka redhibitory vice is liable to the buyer for the return of the price with interest from the time it was paid, for reimbursement of the reasonable expenses occasioned by the sale and those incurred for the preservation of the thing and also for damages and reasonable attorney fees. Expenses incurred for the preservation of the thing have been held to include towing expenses and repair bills for redhibitory vices. See Breaux v. Winnebago Industries, Inc., 282 So.2d 763 (La.App. 1st Cir. 1973). Expenses occasioned by the sale include compulsory insurance premiums for vehicles and finance charges incidental to the purchase. See Miller v. Ford Motor Company, 2001-1299 (La.App. 3d Cir.2/6/02), 815 So.2d 997, and Vance v. Emerson, 420 So.2d 1032 (La.App. 5th Cir. 1982).

There has been no showing that the engine problem was one of the many red-hibitory vices affecting the scrap handler. The engine repair cannot be considered as a reasonable expense occasioned by the sale or an expense incurred for the preservation of the thing.

Scott, as the party opposing the motion for summary judgment, showed that it had evidence which, if believed, could satisfy its evidentiary burden of proof at trial. The record shows that Scott did not alter the engine in any way during the conversion process. The engine failed quite some time after the scrap handler was delivered to Carter. In this case, the parties agreed to bifurcate the issue regarding the scrap handler. Some information is contained in the record concerning the engine, but the issue had not been fully litigated. There is some indication that the turbocharger was negligently installed by Carter’s mechanic and that action caused the engine 12fito fail. Under these circumstances, Scott has shown that there is a genuine issue of material fact as to whether the engine replacement was caused by the fault of Carter. If this fact is proven, this would be a separate issue from the redhibition claim and Carter would not be allowed to recover for an expense occasioned by its own fault. If Scott is successful in showing that the engine failure was caused by Carter’s negligence, it would be inequitable to require Scott to reimburse Carter for the entire cost of the scrap handler on the redhibition claim, and then also to bear the cost of replacing the engine.

The trial court erred in finding that Carter was entitled to summary judgment. We reverse that portion of the trial court judgment and remand for further proceedings.

CONCLUSION

For the reasons stated above, we affirm that portion of the trial court judgment finding that the scrap handler sold by the defendant, Scott Equipment Company, had redhibitory vices; that the plaintiff purchaser, Carter Enterprises, was entitled to rescission of the sale; and that Scott was a manufacturer of the scrap handler, was deemed to know of its defects, and was liable to Carter for attorney fees. We reverse that portion of the trial court judgment finding that Carter was entitled to summary judgment, | ^dismissing Scott’s claims for the cost of replacement of the engine in the scrap handler. The matter is remanded to the trial court for further proceedings. Costs in this court are assessed two-thirds to Scott and one-third to Carter.

AFFIRMED IN PART; REVERSED IN PART; REMANDED FOR FURTHER PROCEEDINGS.

STEWART, J., concurs.

      . The purchase price of the machine was $273,457.87, the sales tax was $19,483.87, the finance charge was $44,168.86, and a processing fee of $350 was included for a total amount paid of $337,460.60.

      . In addition to its redhibition claim, Carter sought recovery under the Louisiana Products Liability Act ("LPLA”). This claim was dismissed pursuant to exceptions of no cause of action filed by Volvo and Scott, asserting that Carter failed to allege that personal injuries were caused as a result of an alleged unreasonably dangerous or defective condition of the machine.

      . In addition, Scott claimed that when it filed its reeonventional and third-party demand against Carter in August 2009, that Carter was in default on its note. Carter eventually made the note current, but Scott sought recovery of attorney fees in connection with the collection, of the note. The trial court granted judgment in favor of Scott on this issue awarding Scott $2,119.32 in attorney fees against Carter. This issue is not before the court on appeal.

      . The defendant argues that the trial court awarded $50,000 in attorney fees and that this amount is excessive. The trial court hand wrote the amount of the attorney fee award into the judgment. While the handwritten amount might at first appear to be $50,000, we have examined the trial court’s handwriting on other documents in the record and we conclude that the amount of the award is $90,000. This is consistent with the transcript which reflects that the trial court stated that attorney fees would be awarded in the amount of $90,000.

      . Carter contends that the trial court's finding that the scrap handler was redhibitory and that rescission of the sale was the proper remedy is the law of the case and precludes the imposition on Carter of payment for the engine replacement.
      The law of the case refers to a policy by which the court will not reconsider prior rulings in the same case. See Arceneaux v. Amstar Corporation, 2010-2329 (La.7/1/11), 66 So.3d 438. In this matter, the trial court determined, prior to trial of the issues regarding redhibition, that Scott’s reconventional demand for payment for the replacement of the engine in the scrap handler would be bifurcated. Even though some testimony regarding the failure of the engine was admitted at trial, after the decision on the redhibition claim, Scott’s reconventional demand regarding the cost of replacing the engine remained outstanding. Under these circumstances, law of the case does not apply.


source: Caselaw Access Project

license: Public Domain

text:
    Pearl Hatter BIGGS, et al., Intervenors-Applicants v. Isaac Curtis HATTER, Jr., et al., Defendants-Respondents.
    No. 46,910-CW.
    Court of Appeal of Louisiana, Second Circuit.
    April 11, 2012.

      Minifield & Harper, by L. Charles Mini-field, Pamela R. Harper, Minden, LA, for Intervenors-Applieants, Pearl Hatter Biggs, Dock R. Hatter, Jr., Bobbie Jean Hatter Smith, & Josezette Jospehine White.
    Newell & Newell, by Daniel W. Newell, Homer, LA, for Defendant-Respondent, Lewis Louisiana Properties, L.L.C.
    The Newell Law Firm, Homer, LA, by Patrick 0. Jefferson, for Defendants-Respondents Isaac Curtis Hatter, Jr., Carolyn Hatter Curry, and Steno Hatter Gillis.
    Before BROWN, WILLIAMS and GASKINS, JJ.
   GASKINS, J.

liThe intervenors in this matter, Pearl Hatter Biggs, Dock R. Hatter, Jr., Josez-ette Josephine White, and Bobbie Jean Hatter Smith, filed an application for supervisory writs from a trial court decision denying their motion for summary judgment against Isaac Curtis Hatter, Jr., Carolyn Hatter Curry, and Steno Hatter Gillis, and their motion for summary judgment against Lewis Louisiana Properties, LLC (“LLP”). In their motions for summary judgment, the intervenors asserted that the judgment of possession in favor of Isaac Curtis Hatter, Jr., and Carolyn Hatter Curry concerning a disputed piece of property in Claiborne Parish should be declared an absolute nullity due to fraud and ill practices and the intervenors should be awarded attorney fees and costs. The intervenors also assert that they should be declared the owners of the property because they have better title than LLP. This court granted the writ application, ordered the lodging of the record and docketed the matter for decision. For the following reasons, we reverse the trial court judgment and remand to the trial court for further proceedings.

FACTS

The pertinent facts in this matter are found in the prior appeal, Biggs v. Hatter, 45,066 (La.App.2d Cir.3/3/10), 32 So.3d 355, and are set forth below:

Isaac Hatter, Sr. (Isaac Sr.) was married to Steno Hatter (Steno), now Gillis. They had two children, Isaac Hatter, Jr. (Isaac Jr.), and Carolyn Hatter Curry (Carolyn). Isaac Sr. and Steno were divorced in California on November 10, 1950. Isaac Sr. was living in California at the time of his death on April 21, 2003.
On May 7, 2003, Isaac Jr. opened an intestate succession for his father in California. However, Isaac Sr. had executed a will on December 20, 2002. Isaac Sr. appointed his brother, Dock Hatter, Jr. (Dock), and his sister, Pearl Hatter Biggs (Pearl), as his personal representatives. After payment of his debts, he left the money in his bank accounts to be distributed evenly between his son, Isaac Jr., phis daughter, Carolyn, and his living brother and sisters, Dock, Pearl, Bobbie Jean Hatter Smith, and Beulah Hatter Mouton. [Beulah Hatter Mouton died during the course of the proceedings. Josezette Josephine White was substituted for her.] He made dispositions of personal property and then made the following bequest concerning immovable property:
I direct all property owned by me, located in Homer, Louisiana, Claiborne parish [sic] known as the Wake Hatter Estate be divided equally between my living brother and sisters, Dock Hatter, Jr., Beulah Hatter Mouton, Pearl Hatter Biggs and Bobbie Jean Hatter Smith. I direct Dock R. Hatter, Jr., and Pearl Hatter Biggs to oversee and make all final decisions concerning administration of this property. I direct one lot located in Pine Bluff, Arkansas to Dock R. Hatter, Jr.
On September 19, 2003, Pearl filed a petition in California to probate the will. On January 14, 2004, Isaac Jr. filed a contest to the will, claiming that it was procured by fraud. On November 5, 2004, Isaac Jr. was removed as administrator of his father’s succession and Pearl was named the executrix.
On December 28, 2005, Steno, Isaac Jr., and Carolyn filed a petition in Claiborne Parish for possession of Isaac Sr.’s immovable property, claiming that he died intestate and that his children were his only heirs. The only property listed as owned by the estate was that in Claiborne Parish and was described as follows:
Undivided interest in and to the SE 1/4 and the SE 1/4 of the NE 1/4, LESS & EXCEPT the North 13 1/3 acres of section 29, Township 23 North, Range 6 West, Claiborne Parish, Louisiana, containing 183 and 2/3 acres, more or less, together with all and singular improvements thereon and all rights thereunto belonging.
An interest in and to the THE MINERAL LEASE in and to the TIG-NER# 1-1, the TIGNER # 2, and the TIGNER #3 situated on the above described property.
The court in Claiborne Parish signed a judgment of possession on January 31, 2006, putting Isaac Jr. and Carolyn in possession of the Claiborne Parish property. The judgment was filed the next day. Isaac Jr. and Carolyn sold their interest in the property to Lewis Louisiana Properties, LLC- (LLP) on October 23, 2006, for approximately $90,000.
|SLLP then sought to recover mineral royalty payments from Petro-Hunt LLC, claiming entitlement to a 58 percent undivided interest in the property. On June 27, 2007, in another proceeding not at issue here, Petro-Hunt filed a concursus petition to deposit into the registry of the court $200,503.75, payable to any or all of the defendants claiming entitlement to royalties from the property sold by Isaac Jr. and Carolyn to LLP. LLP filed a separate lawsuit for partition by licitation. Pearl, Dock, Josezette Josephine White, and Bobbie Jean Hatter Smith filed for an injunction in that case to bar the partition until their rights of ownership to the property, as opposed to those of LLP, could be determined.
On July 11, 2007, Pearl, on behalf of the succession of Isaac Sr., filed a petition for ancillary probate of a testament probated in another state. The court in Claiborne Parish ordered that Pearl be confirmed as the testamentary executrix after complying with the requirements provided by law.
Shortly thereafter, on July 30, 2007, Pearl filed the initial pleading in this case as executrix of her brother’s estate, concerning the immovable property at issue here. She asserted a petitory action and sought to annul the judgment of possession, to cancel the judgment of possession from the conveyance records, to cancel the cash sale deed, and to collect damages. This pleading alleged that the judgment of possession was obtained by fraud and ill practices under La. C.C.P. art. 2004. Isaac Jr., Carolyn, and LLP were named as defendants. A petition of intervention was filed on .October 24, 2007, by Pearl, in her individual capacity, Dock, Beulah Hatter Mouton, and Bobbie Jean Hatter Smith, expressing their desire to intervene and join the suit filed by Pearl on behalf of Isaac Sr.’s succession, demanding the same relief against the same defendants. On April 14, 2008, the plaintiffs filed a second amended and supplemental petition making further allegations regarding fraudulent actions by the defendants.
On April 15, 2008, LLP filed an answer to the petitory action, claiming that it was an innocent third party that relied on the public records and is the rightful owner of the disputed Claiborne Parish property. [Footnotes omitted.]

A peremptory exception of prescription was filed by LLP on September 5, 2008, against Pearl, as executrix of the estate of Isaac Sr., asserting that under La. R.S. 9:5630, any action by a successor not recognized in a judgment of |4possession is prescribed two years after the judgment becomes final. LLP also argued that the petition of intervention filed by Pearl, Dock, Josezette Josephine White, and Bobbie Jean Hatter Smith was not a proper intervention because it did not assert ownership of the disputed property. LLP argued that this pleading did not interrupt prescription.

The trial court granted the exception of prescription. The succession and the in-tervenors appealed. This court reversed the trial court ruling. See Biggs v. Hatter, supra. We found that Pearl’s petition, filed in her capacity as succession representative, interrupted the two-year prescriptive period under La. R.S. 9:5630. We also determined that the intervention by Pearl, in her individual capacity, and by her siblings, was a proper intervention and was also filed within the two-year prescriptive period. The matter was remanded for further proceedings.

During the course of the proceedings below, on September 24, 2008, a judgment of possession was signed by Judge Jenifer Ward Clason, recognizing the intervenors as Isaac Sr.’s sole heirs and legatees and owners of his undivided interest in the Wake Hatter Estate, which was described as the same piece of property conveyed in the judgment of possession obtained by Isaac Jr. and Carolyn, and sending the siblings into possession of the decedent’s portion of the property.

In April 2010, LLP filed a reconventional demand against the intervenors attacking the judgment of possession in favor of the intervenors entered on September 24, 2008. LLP asserted that the disputed property is not in Homer, but in Colquitt, Louisiana. LLP points out that Isaac Jr. and Carolyn had a | judgment of possession to the property in 2006 and sold it to LLP in October 2006. LLP contends that the judgment of possession in favor of the intervenors places a cloud on its title and sought a judgment to reform the interve-nors’ judgment of possession to remove any reference to the disputed property.

On September 5, 2008, LLP had filed a motion for summary judgment, claiming that the public record doctrine protected LLP from unfiled documents such as the will in this case which the intervenors assert was probated in California. In April 2010, LLP filed a supplemental memorandum to its motion for summary judgment against the estate of Isaac Sr., adding the intervenors. LLP asserted that Isaac Sr.’s will directed that all property owned by Isaac Sr. located in Homer, Louisiana be given to the intervenors. LLP contended that this did not address the 186-acre tract which is the subject of this lawsuit, which is located in Colquitt, Louisiana, approximately 12 miles from Homer. LLP also urged that there was no clause in the will directing that the residue of the estate be left to any particular person and therefore, the residue of the estate would pass through the laws of intestacy and vest in Isaac Sr.’s children, Isaac Jr. and Carolyn.

In their opposition to LLP’s motion for summary judgment, the intervenors asserted that LLP’s arguments regarding “good faith” and the public records doctrine are not applicable to succession proceedings.

On June 4, 2010, the intervenors filed a motion for summary judgment against Isaac Jr., Carolyn, and Steno. The inter-venors maintain that there is no dispute of fact that the judgment of possession obtained by Isaac Jr. and Carolyn, asserting that Isaac Sr. did not have a will, was obtained through fraud |fiand ill practices. The intervenors sought to have the judgment of possession in favor of Isaac Jr. and Carolyn erased and cancelled from the conveyance records of Claiborne Parish. The intervenors also sought to recover attorney fees and costs.

On December 3, 2010, the intervenors filed a motion for summary judgment against LLP, arguing that they filed a petitory action in this matter and that they have better title than LLP. The interve-nors state that their ownership stems from the testament of Isaac Sr. and that the clear intent of the will was to convey to them the piece of property in dispute here. They urge that the property has been known for more than 70 years as the Wake Hatter Estate. It is described on the Claiborne tax assessor’s plat of the parish as the Wake Hatter Estate. They assert that the property is widely known in the community as the Wake Hatter Estate. Pearl maintained in her deposition that the property taxes were paid in Homer.

On July 8, 2011, the trial court heard argument on all three motions for summary judgment and denied all three motions without reasons. The intervenors made an application for supervisory review to this court, urging that the trial court erred in denying their motions for summary judgment. This court granted the writ application and docketed the matter for decision.

MOTION FOR SUMMARY JUDGMENT AGAINST ISAAC HATTER, JR., CAROLYN HATTER CURRY, AND STENO HATTER GILLIS

The intervenors argue that the judgment of possession in favor of Isaac Jr. and Carolyn was obtained through fraud and ill practices. They assert that this issue is not disputed. They maintain that the record clearly shows that, because 17Isaac Jr. unsuccessfully contested his father’s will in California, he was aware of his father’s testament that bequeathed the Wake Hatter Estate to the intervenors. In spite of that fact, with their acquiescence, Steno, the mother of Isaac Jr. and Carolyn, filed a petition in Claiborne Parish on behalf of her children stating that Isaac Sr. died intestate and that as his only heirs, Isaac Jr. and Carolyn were entitled to ownership of the property. The intervenors contend that, by selling the property, Isaac Jr. and Carolyn ratified the fraudulent acts of their mother in obtaining the judgment of possession. The intervenors urge that their motion for summary judgment against Isaac Jr. and Carolyn should be granted and they should be awarded attorney fees and costs. They also contend that the judgment of possession in favor of Isaac Jr. and Carolyn and the sale to LLP should be cancelled from the conveyance records. This argument has merit.

Legal Principles

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Palmer v. Martinez, 45,318 (La.App.2d Cir.7/21/10), 42 So.3d 1147, writs denied, 2010-1952, 2010-1953, 2010-1955 (La.11/5/10), 50 So.3d 804, 805. A motion for summary judgment is a procedural device used when there is no genuine issue of material fact. In re Clement, 45,454 (La.App.2d Cir.8/11/10), 46 So.3d 804. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action allowed by law. La. C.C.P. art. 966(A)(2). A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 1 sthat 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); Palmer v. Martinez, supra.

When the motion for summary judgment is made and supported as provided in La. C.C.P. art. 966, the adverse party “may not rest on the mere allegations or denials of his pleading,” but his response, by affidavits or other proper summary judgment evidence, “must set forth specific facts showing that there is a genuine issue for trial.” If he does not so respond, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967(B); Bates v. Louisiana National Guard Armory, 46,892 (La.App.2 Cir.1/25/12), 86 So.3d 21.

A final judgment obtained by fraud and ill practices may be annulled. La. C.C.P. art. 2004 provides:

A. A final judgment obtained by fraud or ill practices may be annulled.
B. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.
C. The court may award reasonable attorney fees incurred by the prevailing party in an action to annul a judgment on these grounds.

The historical development of this provision established the following criteria for an action in nullity: (1) that the circumstances under which the judgment was rendered showed the deprivation of legal rights of the litigant seeking relief, and (2) that the enforcement of the judgment would have been unconscionable and inequitable. The Louisiana Supreme Court has accepted those two requirements as the necessary elements in establishing a nullity action under La. C.C.P. art. 2004. See Gladstone v. American Automobile Association, Inc., 419 So.2d 1219 (La. 1982); Wright v. Louisiana Power & Light, 2006-1181 (La.3/9/07), 951 So.2d 1058.

An ex parte judgment of possession may be annulled for fraud and ill practices where affidavits presented to the court to obtain the judgment contain false information to the effect that the decedent left no will. See Succession of Hearn, 412 So.2d 692 (La.App. 2d Cir.1982), writ denied, 415 So.2d 215 (La.1982); Succession of Davis, 347 So.2d 906 (La.App. 3d Cir.1977). See also West v. Gajdzik, 425 So.2d 263 (La. App. 3d Cir.1982), writ denied, 428 So.2d 475 (La.1983); Succession of Blackwell, 98-50 (La.App. 3d Cir.5/6/98), 713 So.2d 625, writ denied, 98-1983 (La.10/30/98), 727 So.2d 1169; David v. David, 347 So.2d 885 (La.App. 3d Cir.1977).

Discussion

In support of their motion for summary judgment against Isaac Jr. and Carolyn, the intervenors filed numerous documents and affidavits including a copy of a sheriffs deed filed July 2, 1979, executing a partition by licitation whereby Isaac Sr. and several family members, including the intervenors, were awarded various interests in the disputed property. The inter-venors filed a judgment of possession entered in July 2003, giving Isaac Sr. the interest in the disputed property formerly owned by Lela Renfrew Hatter Thompson. The intervenors included the 1950 judgment of divorce between Isaac Sr. and Steno, Isaac Sr.’s will, the contest of the probate of the will filed by Isaac Jr. in California in January 2004, and a California judgment dated November 8, 2004 stating that Isaac Sr.’s will had been proved and appointing Pearl as the administrator. The supporting documents also included the February 2006 | ^petition for possession filed by Steno on behalf of Isaac Jr. and Carolyn, a copy of the January 31, 2006 judgment of possession putting Isaac Jr. and Carolyn in possession of the disputed property, the October 23, 2006 cash sale deed of the property from Isaac Jr. and Carolyn to LLP and a September 24, 2008 judgment of possession of the disputed property in favor of the inter-venors. The intervenors further filed a verifying affidavit by Isaac Jr. stating that in December 2005, he hired Daniel W. Newell to handle his father’s succession, that he reviewed the succession documents and requested that his mother, Steno, sign the affidavit “to prevent me from having to miss work to find a notary public.” Isaac Jr. stated that he was fully aware of all proceedings and requested that his mother sign on his behalf.

Isaac Jr., Carolyn, and Steno filed nothing in opposition to the motion for summary judgment. The curator appointed to represent them at the hearing on the motions for summary judgment adopted the arguments made by LLP. No brief has been filed in this court on their behalf in opposition to the motion for summary judgment against them.

The intervenors have established that Isaac Jr. knew that a will existed, that his claim in California was unsuccessful to have the will declared a nullity, and that the will had been probated in California, disposing of the property in dispute in this matter. Yet after his efforts to nullify his father’s will failed, he, his sister, and his mother caused a petition to be filed in Claiborne Parish stating that Isaac Sr. died intestate, left only Isaac Jr. and Carolyn as his heirs, that his only property included the land at issue in this case. On the basis of this information they knew to be false, Isaac Jr. and Carolyn obtained a judgment Inputting Isaac Jr. and Carolyn in possession of the disputed property. They then sold the property to LLP.

Based upon this record, the intervenors have shown that the judgment of possession entered in favor of Isaac Jr. and Carolyn was obtained by fraud and ill practices. The intervenors who filed this motion for summary judgment have shown that there is no genuine issue as to material fact, and that they are entitled to judgment as a matter of law. The trial court erred in denying the motion for summary judgment against them. We reverse that portion of the trial court judgment and declare that the judgment of possession in favor of Isaac Jr. and Carolyn is null due to fraud and ill practices. We order that the judgment of possession be cancelled from the conveyance records.

The intervenors sought to recover reasonable attorney fees and costs in connection with having the judgment of possession in favor of Isaac Jr. and Carolyn declared null for fraud and ill practices. We remand the matter to the trial court to allow the entry of evidence on the issue of reasonable attorney fees and costs.

MOTION FOR SUMMARY JUDGMENT AGAINST LEWIS LOUISIANA PROPERTIES, LLC

The intervenors assert that the trial court should have granted their motion for summary judgment against LLP. They urge that LLP’s “good faith” and public records doctrine arguments are not applicable to successions. This argument has merit.

Legal Principles

The public records doctrine in this state was revised by Acts 2005, No. 169, § 1, which became effective on July 1, 2006. The sale in this matter to LLP |1?took place on October 23, 2006, and is governed by the revised provisions. La. C.C. art. 3338 provides:

The rights and obligations established or created by the following written instruments are without effect as to a third person unless the instrument is registered by recording it in the appropriate mortgage or conveyance records pursuant to the provisions of this Title:
(1) An instrument that transfers an immovable or establishes a real right in or over an immovable.
(2) The lease of an immovable.
(3) An option or right of first refusal, or a contract to buy, sell, or lease an immovable or to establish a real right in or over an immovable.
(4) An instrument that modifies, terminates, or transfers the rights created or evidenced by the instruments described in Subparagraphs (1) through (3) of this Article.

The recordation of an instrument does not create a presumption that the instrument is valid or genuine. La. C.C. art. 3341. A third person is a person who is not a party to or personally bound by an instrument. La. C.C. art. 3343.

The public records doctrine is founded upon our public policy and social purpose of assuring the stability of land titles. Camel v. Waller, 526 So.2d 1086 (La.1988). The doctrine does not create rights in a positive sense, but rather has the negative effect of denying the effectiveness of certain rights unless they are recorded. It is essentially a negative doctrine. Third persons are not allowed to rely on what is contained in the public records but can instead rely on the absence from the public record of those interests that are required to be recorded. Camel v. Waller, supra. Simply put, an instrument in writing affecting immovable property which is not recorded is null and void except | ^between the parties. Cimarex Energy Co. v. Mauboules, 2009-1170 (La.4/9/10), 40 So.3d 931.

However, there are exceptions to the public records doctrine. One of those exceptions is inheritance rights. It has been consistently held in the jurisprudence that the law of registry is inapplicable where the ownership of, or claim affecting, immovable property has been acquired by inheritance and title has become vested by operation of law. See Long v. Chailan, 187 La. 507, 175 So. 42 (1937); Jackson v. D'Aubin, 338 So.2d 575 (La.1976); Crozat v. Lousiana Coastal VII, LLC, 2001-2404 (La.App.4th Cir.9/11/02), 830 So.2d 319, writs denied, 2002-3100, 2002-3103 (La.2/21/03), 837 So.2d 631; Vaughan v. Housing Authority of New Orleans, 80 So.2d 561 (La.App.Orleans 1955); Succession of Rosinski, 158 So.2d 467 (La.App. 3d Cir.1963); Knighten v. Ruffin, 255 So.2d 388 (La.App. 1st Cir.1971), writs denied, 260 La. 399, 459, 256 So.2d 288, 442 (La.1972). See also William V. Redmann, The Louisiana Law of Recordation: Some Principles and Some Problems, 39 Tulane Law Review 491, 505 (1964-1965). The courts have recognized a right to property obtained through a succession even where that interest was omitted from a judgment of possession that was filed in the public records and relied upon by a third party. See Crozat v. Lousiana Coastal VII, LLC, supra. The recent revision of the registry laws does not address real and personal rights affecting immovables created by operation of law. See Michael Palestina, Of Registry: Louisiana’s Revised Public Records Doctrine, 53 Loyola Law Review 989 (2007).

La. R.S. 9:5630 provides:

A. An action by a person who is a successor of a deceased person, and who has not been recognized as such in the judgment of 114possession rendered by a court of competent jurisdiction, to assert an interest in an immovable formerly owned by the deceased, against a third person who has acquired an interest in the immovable by onerous title from a person recognized as an heir or legatee of the deceased in the judgment of possession, or his successors, is prescribed in two years from the date of the finality of the judgment of possession.
B. This Section establishes a liberative prescription, and shall be applied both retrospectively and prospectively; however, any person whose rights would be adversely affected by this Section, shall have one year from the effective date of this Section within which to assert the action described in Subsection A of this Section and if no such action is instituted within that time, such claim shall be forever barred.
C. “Third person” means a person other than one recognized as an heir or legatee of the deceased in the judgment of possession.
D. For the purposes of this Section, after thirty years from the date of recor-dation of a judgment of possession there shall be a conclusive presumption that the judgment was rendered by a court of competent jurisdiction.

This article allows successors of a deceased person not recognized in a judgment of possession to assert an interest in an immovable formerly owned by the deceased, against a third person who has acquired an interest in the immovable by onerous title from a person recognized as an heir or legatee of the deceased in the judgment of possession, or his successors. The existence of this provision demonstrates that the public records doctrine will not be a bar to claims against third person for title to immovable property where successions are involved if the action is brought within the applicable time limits.

Discussion

In this case, LLP argues that the intervenors failed to file their California judgment in the public records in Claiborne Parish prior to the purchase of the land by LLP, and therefore, under the public records doctrine, LLP is entitléd to 11Brely on the absence of that filing. As outlined above, inheritance rights vested by operation of law are an exception to the public records doctrine. The intervenors in this case acted timely to preserve and enforce their inheritance rights after discovering the efforts of Isaac Jr. and Carolyn to usurp the intervenors’ title to the property. They filed against all parties within two years of the judgment of possession in favor of Isaac Jr. and Carolyn in accordance with La. R.S. 9:5630. Therefore, the public records doctrine does not operate to preserve any rights to this property that LLP claims to have acquired from Isaac Jr. and Carolyn through their fraudulently obtained judgment of possession.

LLP also argues that there is a genuine issue of material fact concerning the description of the property in this matter. They contend that the. will conveys property in Homer, Louisiana, while the legal description of the property they purchased is located near Colquitt, Louisiana. In support of their motion for summary judgment against LLP, the intervenors supplied a map of Section 29, Township 23, Range 6, in Claiborne Parish which contains property labeled the “Wake Hatter Estate.” This is the same term used in the decedent’s will. The pertinent part of the description of the property conveyed to LLP is:

Undivided interest in and to the SE 1/4 and the SE 1/4 of the NE 1/4, LESS & EXCEPT the North 13 1/3 acres of section 29, Township 23 North, Range 6 West, Claiborne Parish, Louisiana, containing 183 and 2/3 acres, more or less, together with all and singular improvements thereon and all rights thereunto belonging. [Emphasis supplied.]

The map filed by the intervenors shows that the property labeled as the “Wake Hatter Estate” excludes the north 13 1/3 acres. The intervenors attached to their motion several deeds showing the chain of title to the property described in both judgments of possession in this matter. A portion of a deposition from |1fiPearl Hatter Biggs that was admitted stated that Isaac Sr. owned only one piece of property in Louisiana which was his interest in the Wake Hatter Estate. Also attached to the motion for summary judgment are affidavits from Pearl Hatter Biggs and Dock Hatter. Those portions of the affidavits not excluded by the trial court stated that the tax notices on this property are sent from Homer, Louisiana and that Colquitt is a small community and not a town.

In this case, the intervenors have provided documentation to show that the property described in the judgment of possession obtained by Isaac Jr. and Carolyn and then conveyed to LLP was the Wake Hatter Estate. This was the same property conveyed to the intervenors in Isaac Sr.’s will and upon which the intervenors also obtained a judgment of possession. LLP has argued that there is a dispute as to the description of the property, but has failed to show any proof that the property described in the judgments of possession obtained by the parties in this matter is a different piece of property from the Wake Hatter Estate conveyed in the will of Isaac Sr. Based on the record, there is no genuine issue of material fact regarding the property description in this case.

We find that the trial court erred in failing to grant summary judgment in favor of the intervenors against LLP. As set forth above, the judgment of possession obtained by Isaac Jr. and Carolyn is null because it was obtained by fraud and ill practices. Because the intervenors’ title to the property was an inheritance right and vested by operation of law, the public records doctrine provides no protection to LLP’s claim to ownership of the property through the purchase from Isaac Jr. and Carolyn, who were not the rightful owners. There is no dispute as to the description of the property conveyed in Isaac Sr.’s will. 11/There is no genuine issue of material fact that the intervenors are the rightful owners of the property.

We are cognizant that LLP filed a re-conventional demand in the trial court against the intervenors, based on its argument that the property conveyed in the will was not the property described in the judgment of possession obtained by Isaac Jr. and Carolyn and sold to LLP. That claim has been considered and disposed of in these proceedings, rendering LLP’s re-conventional demand moot.

CONCLUSION

For the reasons stated above, we reverse the trial court judgment denying the motion for summary judgment by the in-tervenors against Isaac Hatter, Jr., Carolyn Hatter Curry, and Steno Hatter Gillis, and the motion for summary judgment against LLP. We grant the motions for summary judgment and find that the in-tervenors are the owners of the property in this matter. We order that the judgment of possession in favor of Isaac Hatter, Jr. and Carolyn Hatter Curry be can-celled from the conveyance records. We also order that the sale of the property from Isaac Hatter, Jr. and Carolyn Hatter Curry to LLP be cancelled from the conveyance records. We remand the matter to the trial court for consideration of reasonable attorney fees and costs for the in-tervenors in connection with having the judgment of possession in favor of Isaac Hatter, Jr. and Carolyn Hatter Curry declared null for fraud and ill practices. Costs in this 11Rcourt are assessed one-half to Isaac Hatter Jr., Carolyn Hatter Curry, and Steno Hatter Gillis, and one-half to LLP.

REVERSED; REMANDED FOR FURTHER PROCEEDINGS.


text:
    Jennifer PARTAIN, et al., Plaintiffs-Appellees v. Timothy PEAKER, et al., Defendants-Appellants.
    No. 46,978-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 11, 2012.

      Tracy L. Oakley, Ruston, LA, for Defendant-Appellant Safeway Insurance Company.
    Kitchens, Benton, Kitchens & Black, Minden, LA, by Graydon Kelly Kitchens, III, Clinton C. Black, for Plaintiffs-Appel-lees.
    Borne & Wilkes, L.L.P., Lafayette, LA, by Keith Michael Borne, for Defendant-Appellee Timothy Peaker.
    Seabaugh, Joffrion, Sepulvado & Victory, LLC by Christopher Brown Joffrion, Shreveport, LA, for Defendant-Appellee Louisiana Farm Bureau Mutual Insurance Company.
    Before WILLIAMS, GASKINS and CARAWAY, JJ.
   GASKINS, J.

I;Safeway Insurance Company (“Safeway”) appeals from a trial court judgment finding that the company’s insurance policy provided coverage for Timothy Peaker when he drove a rented car into the plaintiffs, Jennifer Partain; her minor child, Luke Wesley Partain; Heather Case; and her minor child, Gavon McCoy. For the following reasons, we reverse the trial court judgment.

FACTS

The accident at issue here occurred on April 14, 2006, on the parking lot of Wal Mart in Minden, Louisiana. Peaker was driving a 2005 Mazda that had been rented by Sarah Yocum from Enterprise (“Enterprise”), a car rental company, on April 12, 2006. Peaker was not designated as an additional driver on the rental car agreement. Peaker drove the vehicle into the plaintiffs, who were walking on the lot.

On November 22, 2006, the plaintiffs filed suit for their damages against Peak-er; his insurer, Safeway; Louisiana Farm Bureau Mutual Insurance Company (“Farm Bureau”), the uninsured/underin-sured (“UM”) insurer of Partain; and Allstate Insurance Company, the UM insurer of Case.

On July 3, 2008, Safeway filed a motion for summary judgment, citing the provision in Peaker’s policy which specified that coverage for a non-owned vehicle was provided to the named insured “provided the non-owned automobile is being used by the named insured with the permission of its owner.” Safeway claimed that Yocum was the only authorized driver |2of the rental car and that Peaker did not have express or implied permission from Enterprise to drive the car. Therefore, Safeway did not provide coverage under its policy for this accident. It does not appear that the motion was ruled upon.

Trial on the matter was held on April 18, 2011. On June 1, 2011, the trial court signed and filed a judgment finding Peak-er to be 100 percent at fault in causing the accident. Damage awards were made to all the plaintiffs. The trial court also apparently found that the Safeway policy provided coverage to Peaker. The trial court stated that the damage awards were subject to the $20,000 policy limit of the Safeway policy. The plaintiffs’ demands against Peaker were dismissed.

Safeway appealed the trial court judgment, claiming that the trial court erred in finding that its policy provided coverage to Peaker in this case. The trial court clerk’s office notified Safeway that the recording device used at the hearing had malfunctioned and there was no recording of the trial. Therefore, no transcript could be produced. Also, the judge’s oral reasons for judgment were not available.

Due to the lack of a transcript, Safeway filed in this court a motion to remand for new trial in order to take the testimony of Peaker and Dean Jagot, the Enterprise employee who rented the ear to Yocum. The motion to remand for new trial was denied by this court, noting that the lack of a transcript could be corrected by a joint stipulation under La. C.C.P. art. |s2132 and the filing of written reasons by the trial court. The parties were given 20 days to enter a joint stipulation.

In their joint stipulation, the parties agreed that Peaker was 100 percent at fault; that claims against Peaker were dismissed to the extent that he was not insured; that the Safeway policy filed in connection with the motion for summary judgment was adopted by reference and introduced into evidence; that the plaintiffs will not appeal the amount of damages; that the issues on appeal will be limited to insurance coverage, and specifically, whether the trial court correctly held that Safeway’s policy insured Peaker while operating the rental vehicle at the time of the accident.

The parties stipulated the testimony of Jagot, the branch manager of Enterprise where the vehicle was rented, and the testimony of Peaker. Jagot testified that he was employed by Enterprise as a branch rental manager and had access to the records dealing with the lease of the rental car involved in this case. He was personally familiar with the terms and conditions of the lease agreement between Enterprise and Yocum. On April 12, 2006, Jagot leased a 2005 Mazda to Yocum, who lived in Princeton, Louisiana.

|4Enterprise sent a “car prep” to Yo-cum’s residence to pick her up and bring her to the Enterprise office to fill out and sign the rental agreement. Yocum came in, filled out and signed the lease agreement. Jagot identified a copy of the lease agreement which was signed by Jagot and Yocum. Yocum paid in cash. Jagot did not remember Peaker being present. Ja-got specifically asked Yocum if there would be any other drivers and she said there would be none. If Yocum had identified Peaker as an additional driver, and if he had a valid driver’s license, he would have been listed on the rental agreement as an additional driver. If Peaker did not have a valid driver’s license, he could not have been listed as an additional driver.

Jagot walked out to the car with Yocum, did a walk-around inspection, and gave her instructions. Jagot never authorized Peaker’s use of the vehicle and was not aware that Peaker would be a driver. Yo-cum was the only authorized driver of the vehicle. Jagot did not authorize Peaker to drive or operate the leased vehicle. Peak-er did not have permission of Enterprise to operate the car on April 14, 2006. Peaker was not an authorized driver of the vehicle under the lease agreement executed on April 12, 2006.

Peaker stated that on April 14, 2006, Enterprise sent an employee to the house he shared with Yocum. He could not remember who called Enterprise. According to Peaker, both he and Yocum talked to the Enterprise employee at their home. The Enterprise employee drove them to lathe Enterprise office in Bossier. Yocum filled out and signed the lease agreement at Enterprise. Peaker believed they did it that way because his driver’s license was not valid. Peaker said that he talked to the Enterprise representative and answered questions asked him by the representative. Peaker claimed that he used his money to pay for the rental. He asserted that he and Yocum used his Safeway insurance policy to rent the vehicle. Peaker stated that no one from Enterprise ever told him that he could not drive the vehicle and he thought he could drive the vehicle. Peaker acknowledged that no one from Enterprise instructed him on operating the vehicle and that Yocum drove the vehicle away from Enterprise. Peaker urged that the actions of the Enterprise representative implied to him that he could drive the car. He only drove the car one time and that was on the date of the accident. Peaker said that Yocum asked him to drive the car because she was too tired to drive. Peaker did not think that he should be driving because he did not have a valid driver’s license, but he thought he had permission to drive the vehicle.

The trial court filed its written reasons for judgment, basically reiterating the written judgment finding that the Safeway policy provided coverage for this accident. Safeway proceeded with its appeal.

INSURANCE COVERAGE

Safeway asserts that the trial court erred in finding that the Safeway policy provided coverage for Peaker under the facts present here. This argument has merit.

| ^Discussion

In Siverd v. Permanent General Insurance Company, 2005-0973 (La.2/22/06), 922 So.2d 497, the Louisiana Supreme Court stated the following concerning the review of fact:

A court of appeal should not set aside the factual findings of a trial court absent manifest error or unless clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). However, if a court of appeal finds that the trial court committed a reversible error of law or manifest error of fact, the court of appeal must ascertain the facts de novo from the record and render a judgment on the merits. LeBlanc v. Stevenson, 00-0157 (La.10/17/00), 770 So.2d 766. Although appellate courts should accord deference to the factfinder, they nonetheless have a constitutional duty to review facts. Ambrose v. New Orleans Police Dep’t Ambulance Serv., 93-3099, p. 8 (La.7/5/94), 639 So.2d 216, 221. Because appellate courts must perform this constitutional function, they have every right to determine whether the trial court verdict was clearly wrong based on the evidence or clearly without evi-dentiary support. Ambrose at p. 8-9, 639 So.2d at 221. The reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court’s findings; it must instead review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Stobart v. State of Louisiana, through Dep’t of Transp. & Dev., 617 So.2d 880, 882 (La.1993). The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfin-der’s conclusion was reasonable. Sto-bart, 617 So.2d at 882. We have previously emphasized the principle that “if the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Stobart, 617 So.2d at 882-83 (citing Housley v. Cerise, 579 So.2d 973 (La.1991) (quoting Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990))).

The jurisprudence is clear that, when a party rents a vehicle and fails to designate any additional drivers in the rental car agreement, the rental car agency that owns the vehicle has not conferred express permission on any |7person other than the lessee to drive the vehicle. Therefore, insurance policy provisions like the one’ contained in Peaker’s contract of insurance with Safeway do not provide coverage for the nonpermissive use of a non-owned vehicle. See Simms v. Butler, 1997-0416 (La.12/2/97), 702 So.2d 686; Weston v. Hollis, 26,380 (La.App.2d Cir.12/7/94), 647 So.2d 459; Gonzales v. Progressive Specialty Insurance Company, 99-0792 (La.App. 4th Cir.5/5/99), 732 So.2d 1268.

The issue of implied permission by a rental car agency to use a rental vehicle was considered in Sauer v. National Car Rental System, Inc., 07-844 (La.App. 5th Cir.4/15/08), 980 So.2d 898, writ denied, 2008-1235 (La.9/19/08), 992 So.2d 935. In that case, Ms. Heflin and her sister, Ms. Hutchins, traveled together to New Orleans by plane and went to National Car Rental to rent a car. Ms. Hutchins rented the car while Ms. Heflin retrieved their bags. Ms. Hutchins did not list Ms. Heflin as an authorized driver on the rental car agreement. However, Ms. Heflin believed that she was an authorized driver because, when the pair traveled together, their practice was for Ms. Hutchins to pay for the rental car and include Ms. Heflin as an additional driver. The car rental agent walked the ladies to the car and Ms. Heflin got into the driver’s seat. The agent gave Ms. Heflin instructions on the operation of the vehicle and Ms. Heflin drove the car off the lot. Ms. Heflin was involved in an accident while driving the rental car. A lawsuit was filed against numerous parties.

Ms. Heflin’s insurer, Allstate, sought to avoid liability by arguing that, because Ms. Heflin was not listed as an additional driver in the car |srental agreement, she did not have the permission of National to drive the car, and therefore, no coverage was provided under the Allstate policy. The plaintiffs argued that Ms. Heflin had the implied permission of National to drive the car and that the Allstate policy did provide coverage. The appellate court found that the actions of the rental car agent in walking the ladies to the car, giving Ms. Heflin instructions in the operation of the car, and watching as she drove the vehicle off the lot, gave reason for Ms. Heflin’s belief that she was an additional driver under the rental agreement. These actions showed a sufficient acquiescence in, or lack of objection to the use of the vehicle by Ms. Heflin. Therefore, because Ms. Heflin had implied permission of National to use the vehicle, the Allstate policy provided coverage. See also Armstrong v. Thrifty Car Rental, 2005-1461 (La.App. 3d Cir.6/7/06), 933 So.2d 235.

In this case, the record does not support the trial court’s finding that Peak-er had the express or implied permission of Enterprise to operate the rented vehicle. Jagot testified that he sent a car to pick up Yocum and bring her to the car rental agency where she alone signed the rental agreement and she paid for the rental in cash. Jagot did not remember Peaker being present during the transaction. Jagot specifically asked Yocum if there would be additional drivers of the vehicle and she said that there would be none. No additional drivers were listed on the rental agreement. Jagot went out to the vehicle with Yocum and gave her instructions regarding the vehicle. Jagot did not authorize Peaker to drive the vehicle.

| ¡¡Peaker claims that he accompanied Yo-cum to Enterprise where she filled out the rental car agreement. Peaker acknowledged that Yocum rented the car because Peaker did not have a valid driver’s license. Peaker stated that he paid for the rental, but nothing on the rental agreement corroborates this claim. Peaker asserted that he used his insurance policy with Safeway to rent the vehicle. However, that portion of the rental agreement entered into evidence in this case makes no mention of Safeway and does not corroborate this statement by Peaker. Further, Peaker urged that he talked to the Enterprise representative and answered questions asked him by the representative. There is no showing what these questions were. No one from Enterprise instructed Peaker in the operation of the vehicle. Yocum drove the vehicle away from Enterprise, not Peaker. Peaker gave a conflicting statement by saying that when Yocum asked him to drive the car, he did not think he should be driving because he lacked a valid driver’s license, but that he thought he had permission to drive the vehicle.

Because Peaker was not listed as an additional driver on the policy, it is clear that he did not have the express permission of Enterprise to use the vehicle. The record also does not support the finding that Peaker had implied permission to drive the vehicle. There is a serious question as to whether he was even present when the vehicle was rented. There is no evidence, other than his self-serving testimony, that he paid rental charges. The documentary evidence does not show that his insurance with Safeway was used to rent the vehicle. Peaker admits that he was not instructed in the operation of the vehicle and he did not drive the vehicle away from | inEnterprise. None of the facts found in Sauer, dealing with implied permission by a car rental agency to use a rented vehicle, are present in this case.

It is unfortunate that Peaker caused an accident resulting in injury to four people under circumstances precluding coverage by his insurance policy with Safeway. However, Peaker clearly used this vehicle without the express or implied permission of the owner, Enterprise. Under the terms of the Safeway insurance policy, there is no insurance coverage to Peaker for this accident.

MOTION TO DISMISS

In the trial court, the plaintiffs settled their claims with their UM insurance carriers, Farm Bureau and Allstate Insurance Company. A satisfaction of judgment is contained in the record between Case, her child, and Allstate. Farm Bureau asserts that it settled with Partain and her child on April 6, 2011, prior to trial. A joint motion and order to dismiss by Farm Bureau and Partain and her child was filed in the trial court on June 9, 2011. However, because Safeway appealed the judgment on June 8, 2011, the trial court directed that the motion be filed with this court. The motion was denied by this court due to lack of jurisdiction to render a dismissal against a party not before the court on appeal. This court stated that the disposition of the claim against Farm Bureau may be raised by the parties on appeal. Farm Bureau has filed a brief in this case arguing that the joint motion and order to dismiss should be granted.

|nWe conclude that the joint motion and order for dismissal was properly filed in the trial court and should be dealt with by that court. La. C.C.P. art. 1671 provides:

A judgment dismissing an action without prejudice shall be rendered upon application of the plaintiff and upon his payment of all costs, if the application is made prior to any appearance of record by the defendant. If the application is made after such appearance, the court may refuse to grant the judgment of dismissal except with prejudice.

La. C.C.P. art. 2088 provides in pertinent part:

The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of a devolutive appeal. Thereafter, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal, [.]

This article contains a list of specific actions over which a trial court retains jurisdiction in a case after the filing of an order of appeal. The list of circumstances enumerated in La. C.C.P. art. 2088 over which the trial court retains jurisdiction is not intended to be exclusive. Under the express provisions of the article, the trial court is not considered divested of jurisdiction to consider any issue that is “not reviewable under the appeal.” This language “not reviewable under the appeal” has generally been interpreted to give the trial court continuing jurisdiction over all issues that are unaffected by the appeal, even if the issue is not specifically listed in La. C.C.P. art. 2088. State Through Department of Social Services on Behalf of Harden v. Southern Baptist Hospital, 94-2228 (La.App. 4th Cir.10/12/95), 663 So.2d 443, writ denied, 95-2751 (La.1/26/96), 666 So.2d 676.

hJn this matter, the trial court judgment made no mention of Farm Bureau. No issues regarding Farm Bureau are before this court for review. Farm Bureau is not a party to this appeal. This court continues to lack jurisdiction to render a dismissal against a party not before the court on appeal. Because the issues regarding Ms. Partain and Farm Bureau are not reviewable on appeal, the trial court retained jurisdiction to act on the joint motion and order to dismiss. We direct Ms. Partain and Farm Bureau to refile the joint motion and order to dismiss in the trial court and the trial court is instructed to act upon it.

CONCLUSION

For the reasons stated above, we reverse the trial court judgment against Safeway and find that the Safeway provides no insurance coverage in this case. Costs in this court are assessed to the plaintiffs, Jennifer Partain, individually and on behalf of her minor child, Luke Wesley Partain, and Heather Case, individually and on behalf of her minor child, Gavon McCoy.

REVERSED.

      . La. C.C.P. art. 2161 provides in pertinent part:
      An appeal shall not be dismissed because the trial record is missing, incomplete or in error no matter who is responsible, and the court may remand the case either for retrial or for correction of the recordf.]
      La. C.C.P. art. 2132 provides:
      A record on appeal which is incorrect or contains misstatements, irregularities or in-formalities, or which omits a material part of the trial record, may be corrected even after the record is transmitted to the appellate court, by the parties by stipulation, by the trial court or by the order of the appellate court. All other questions as to the content and form of the record shall be presented to the appellate court.

      . The stipulation as to Peaker’s testimony lists the date of the rental agreement as April 14, 2006, not April 12, 2006. The lease agreement shows that it was actually executed on April 12, 2006.