author: AMY, Judge.

text:
    Wiley C. SHARBINO v. COOKE FAMILY ENTERPRISES, LLC, et al.
    No. 08-1306.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.
    Stephen E. Everett, Alexandria, LA, for Plaintiff/Appellant, Wiley C. Sharbino.
    Carroll Devillier, Jr., Breazeale, Sachse & Wilson, Baton Rouge, LA, for Defendant/Appellee, Cooke Family Enterprises, LLC.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS and MARC T. AMY, Judges.
   AMY, Judge.

_[/The plaintiff filed a suit for rescission of the sale of a motorcycle which he purchased from the defendant. The defendant filed a motion for summary judgment alleging that it should be dismissed as the sale was rescinded prior to the filing of suit. The trial court entered summary judgment in favor of the defendant and awarded attorney fees. The plaintiff appeals. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.

Factual and Procedural Background

On February 5, 2007, the plaintiff, Wiley Sharbino, purchased a 2003 Harley Davidson motorcycle from the defendant, Cooke Family Enterprises, L.L.C., d/b/a Renegade Harley-Davidson. He filed this matter on September 10, 2007, alleging that within two days of purchase, the motorcycle sustained a broken drive belt. He contended that, upon return to the dealership, he was informed that “the drive sprockets on the transmission and the rear wheel of the motorcycle were mismatched, causing the drive belt to break.” He stated that the condition could not be remedied without changing the appearance of the motorcycle and that he would not have purchased the motorcycle had he known of this condition. He alleged that the dealership knew of the condition prior to the sale and that it was in bad faith in the sale. Thus, the plaintiff asserted that he was entitled to the sales price plus interest, reasonable expenses related to the sale and preservation of the motorcycle, and attorney fees.

In its answer, the defendant acknowledged that the plaintiff purchased the motorcycle, but denied, among other things, that its employees acted in bad faith. The defendant further asserted that the petition failed to allege a cause of action as it had previously “rescinded the sale, paid all amounts outstanding on the purchase |2price of the Motorcycle, and satisfied all liens against the Motorcycle.” The defendant contended that the plaintiff could not have suffered pecuniary damages, as he had not made payments on the motorcycle, and that he did not suffer non-pecuniary damages.

Thereafter, on July 8, 2008, the defendant filed a motion for summary judgment, which it supplemented with the affidavit of Eddy F. Soberon, the defendant’s co-owner and dealer/operator. Included in his statements are details of the sale of the motorcycle, as well as the rescission of the sale and the defendant’s satisfaction of the related lien. The record contains no opposition filed by the plaintiff. The minutes and transcript reflect that neither the plaintiff nor his counsel was present at the motion for summary judgment hearing conducted on August 25, 2008. Following the hearing, the trial court entered judgment in favor of the defendant, dismissing the plaintiffs petition and, upon oral motion of the defendant’s attorney, awarded $1,000.00 in attorney fees as well as court costs.

The plaintiff appeals, questioning both the entry of summary judgment and the imposition of attorney fees.

Discussion

The plaintiff contends that summary judgment was inappropriate and that he did not assert an opposition as there was “no discovery in this case.” He also argues that the defendant’s submission was without “references to the critical issue of knowledge of defects prior to the sale, determinative of Plaintiffs claimed right to relief under Civil Code Article 2545.” He also asserts that the “mover never carried its burden by negating by affidavit or other proof glaringly obvious issues of material fact, the burden therefore never shifted to Plaintiff, and the Motion for Summary ^Judgment should not have been granted.” The plaintiffs argument fails in various respects.

Louisiana Code of Civil Procedure Article 966(B) provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” With regard to burden of proof, Article 966(C)(2) provides that:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

This article indicates that, since it was the plaintiff who had the burden of proving all aspects of his claim at trial, the defendant was only required to point out an absence of factual support for “one or more elements essential to the adverse party’s elaim[.]” Id. Thereafter, the plaintiff was required to establish that he would be able to meet his evidentiary burden of proof. The plaintiff failed to do so.

Louisiana Civil Code Article 2520 instructs, in part, that:

The seller warrants the buyer against redhibitory 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 that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale.
| ,A defect is redhibitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price.

The plaintiffs suit was for rescission of the sale, and, due to his allegation of bad faith on the part of the defendant, he sought recovery under La.Civ.Code art. 2545, which provides:

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 may 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.

The defendant produced evidence indicating that the plaintiff would be unable to establish the merits of his claim and further evidence indicating that no damages were owed. Particularly, Mr. Soberon’s affidavit provided that, when the plaintiff rejected the possible repair to the motorcycle, the defendant agreed to rescind the sale. The defendant tendered the full “pay-off balance” on the motorcycle, which included interest since the plaintiff had not made any payments after the purchase. This arrangement was further evidenced by a letter from Harley-Davidson Credit indicating that the loan had been paid in full and a Lien Satisfaction form issued by Eaglemark Savings Bank, the title holder. As for the plaintiffs contention that he was owed additional damages because the loan balance did not include his down payment, Mr. Soberon’s affidavit indicated that he and other employees “repeatedly asked Mr. Sharbino to come retrieve his pistol and Mr. Sharbino refused. Mr. Sharbino maintained he wanted $1,500 instead. He told Mr. Sharbino that Sharbi-nojjwas not entitled to a refund of anything other than what his actual down payment was, which was the pistol.” Finally, he stated that the “pistol is in safe keeping at Renegade Harley and Sharbino is free to retrieve it at any time.”

Despite this evidence, the plaintiff offered no opposing evidence indicating that he would be able to satisfy his evidentiary burden of proof at trial as is required by La.Code Civ.P. art. 966(C)(2). mile the plaintiff argues that the defendant failed to introduce evidence of its good faith, he was the party required to come forward with evidence of bad faith pursuant to Article 966(C)(2) as he would have been required to do at trial. The mere allegation of bad faith in his petition was insufficient. Finally, it bears mentioning that the plaintiff has not demonstrated his entitlement to any damages. Rather, the record is silent on this point. In light of the fact that the sale had been rescinded prior to the filing of suit, the entirety of the loan and finance charges were paid by the defendant, and the plaintiff had the motorcycle in his possession for only a few days, it is unclear what damages could have been incurred.

Nor is there merit to the plaintiffs assertion that summary judgment was inappropriate as there had been no discovery in this case. The plaintiff filed the petition in this case on September 10, 2007, whereas the defendant did not file the motion for summary judgment until ten months later, on July 15, 2008. The record contains no indication that the plaintiff instituted discovery during that time, although the matter initially had a trial date of August 19, 2008 according to the parties’ joint motion to continue trial. The plaintiff did not apprise the trial court of any need for additional time to respond to the motion for summary judgment as is provided by La.Code Civ.P. art. 966(B), which provides: “For good cause the court shall give the adverse party additional time to file a response, including opposing affidavits or | ^depositions.” In short, there was no request or showing of good cause for additional time.

For these reasons, the trial court correctly entered summary judgment in favor of the defendant, dismissing the plaintiffs petition.

Attorney Fees

The plaintiff also contests the trial court’s award of $1,000 in attorney fees to the defendant. While defense counsel orally moved for attorney fees at the summary judgment hearing, the record does not definitively indicate on what basis the request was made or on what basis the trial court made the award. In its brief, defense counsel suggests that attorney fees were appropriate under La.Code Civ.P. art. 863, which provides:

A. Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading and state his address.
B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact; that it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney’s fee.
|7E. A sanction authorized in Paragraph D shall be imposed only after a hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sanction.

Even if the trial court found attorney fees appropriate under this article, the imposition of such a sanction is appropriate after a “hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sentence.” As the plaintiffs counsel did not attend the summary judgment hearing and the request for attorney fees was made at that hearing, no evidentiary hearing has yet been held on the sanctions issue. Moreover, Article 863(D) requires a designation by the trial court as to whether the sanction is “imposefd] upon the person who made the certification or the represented party, or both[.]” Accordingly, we reverse the imposition of attorney fees and remand this matter for notice and a hearing in accordance with La.Code Civ.P. art. 863.

Frivolous Appeal

The defendant asserts in its brief to this court that damages should be awarded for the filing of a frivolous appeal under La.Code Civ.P. art. 2164. In light of the order of remand, we do not make an award under Article 2164.

DECREE

For the foregoing reasons, the summary judgment is affirmed insofar as it dismissed the plaintiffs Petition for Rescission of Sale and for Damages with prejudice and awarded court costs. The judgment is reversed insofar as it ordered the payment of attorney fees. This matter is remanded for a hearing on the issue of whether sanctions are appropriate pursuant to La. Code Civ.P. art. 863. All costs of these proceedings are assessed to the appellant, Wiley C. Sharbino.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.


source: Caselaw Access Project

author: SULLIVAN, Judge.

license: Public Domain

text:
    Cheryl Matthews DIGGS v. Jeffrey Allen DIGGS.
    No. 08-1271.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.

      William C. Vidrine, Vidrine & Vidrine, Lafayette, Louisiana, for Defendant/Appellant, Jeffrey Allen Diggs.
    Ronald S. Haley, Jr., Haley & Associates, Baton Rouge, Louisiana, for Plaintiff/Appellee, Cheryl Matthews Diggs.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   SULLIVAN, Judge.

1 rEx-husband appeals the trial court’s determination that his ex-wife proved she is entitled to final periodic support. For the following reasons, we affirm the judgment of the trial court.

Facts

Jeffrey and Cheryl Diggs were married June 3, 1995. One daughter was born of their marriage. On August 8, 2006, Cheryl filed for divorce as provided in La.Civ. Code art. 102. A judgment of divorce was granted on April 12, 2007.

Ancillary to the divorce, Cheryl sought final periodic support, claiming she was disabled and free from fault prior to filing for divorce. In his answer, Jeffrey admitted Cheryl was disabled but denied she was free from fault in causing the divorce. At trial, Cheryl testified that she suspected for a long time during the marriage that Jeffrey was having án affair. In 2005, she hired a private investigator whose investigation confirmed her suspicions. Cheryl’s attorney cross-examined Jeffrey about emails written to him in 2002 to establish that the affair was ongoing at that time. The emails were suggestive of an intimate relationship between Jeffrey and the author.

Cheryl further testified that she was concerned about possibly contracting sexually-transmitted diseases from the beginning of the marriage and that she continuously asked Jeffrey if he was having an affair. According to Cheryl, Jeffrey always denied having an affair until he was faced with the evidence obtained by the private investigator. Cheryl also testified that she and Jeffrey went to counseling |2because of her suspicions and that while Jeffrey’s behavior improved during counseling, it reverted to what it had been prior to the counseling when the counseling ended.

Jeffrey admitted that the author of the suggestive emails was a woman he and Cheryl knew and that he had an affair with her, but he claimed the affair did not begin until December 2005. He testified that in 2002 he and the author were just friends and that the emails were the author’s way of “joking.” Jeffrey also testified that throughout their marriage, Cheryl was mean and controlling of him, their daughter, and his daughter who lived with them. He complained that she was verbally abusive, was not affectionate, and would push him away when he tried to show her affection. He testified that she told him in 2001 she did not love him and that she did not support him in his work or personal endeavors. Jeffrey described Cheryl as being cold and distant to his family, friends, and guests, including his boss. He further testified that after she was home full time due to her disability, she essentially did nothing in their home for him or the children, although her disability did not prevent her from doing so.

According to Jeffrey, he initiated counseling in 2001 to address his concerns, but it did not help. He claimed that he did not divorce Cheryl because he did not want his children to grow up in a home without both parents like he did. Jeffrey also claimed that Cheryl put him out of their home by having the door locks changed and changing the alarm system code.

Cheryl denied that she locked Jeffrey out of their home, but she did not deny his descriptions of her behavior toward him, the children, and others during the course of the marriage.

|sThe trial court determined that Cheryl proved she is entitled to final periodic support. It found her suspicions of an affair were warranted in light of the suggestive emails and that her mean behavior was excusable under the circumstances. Jeffrey appeals, claiming that he and Cheryl were at fault in causing the breakup of their marriage.

Discussion

Jeffrey urges that the tidal court improperly found his adultery to be the sole, independent, and proximate cause of the failure of the marriage without considering Cheryl’s habitually cruel behavior as an independent and proximate cause of the dissolution of marriage.

A spouse seeking final periodic support must “affirmatively prove ” she is free from causing the failure of the marriage. Floyd v. Floyd, 03-1126, p. 4 (La.App. 3 Cir. 12/10/03), 861 So.2d 837, 839; La.Civ.Code arts. 111, 112. To meet this burden, she must prove she did not commit misconduct that is an “independent, contributory or proximate cause of the failure of the marriage.” Terry v. Terry, 06-1406, p. 5 (La.App. 3 Cir. 3/28/07), 954 So.2d 790, 794. Habitual intemperance or excesses and cruel treatment or outrages are examples of fault that can defeat a claim for final periodic support. Floyd, 861 So.2d 837. However:

A party is not deprived of alimony due to a reasonable justifiable response to the other spouse’s initial acts. A spouse who perceives infidelity may become quarrelsome or hostile. Such a reasonable reaction does not constitute legal fault. The suspicion of adultery causes the breakup and not the reaction. A spouse who reacts should not be precluded from receiving alimony solely because of his or her own response.

Adkins v. Adkins, 42,076, pp. 4-5 (La.App. 2 Cir. 4/11/07), 954 So.2d 920, 923.

I/The trial court observed that Jeffrey’s description of Cheryl’s behavior equated to habitual intemperance and cruel treatment and that if he had left the marriage before entering into an affair, its opinion would have been different. However, the trial court also determined that while Cheryl did not have proof of Jeffrey’s affair until 2005, the emails were of a “serious and intimate nature” that warranted her suspicions of adultery and justified the habitual intemperance and meanness described by Jeffrey.

We agree with the trial court’s determination that Cheryl’s behavior constituted cruel treatment and fault as contained in La.Civ.Code arts. Ill and 112, but we cannot reverse the trial court’s determination that Cheryl established this behavior was a response to Jeffrey’s affair unless the record establishes that the determination was an abuse of discretion. January v. January, 03-1578 (La.App. 3 Cir. 4/7/04), 876 So.2d 98.

The trial court was faced with a credibility determination. It accepted Cheryl’s testimony that she was suspicious of Jeffrey having an affair from the beginning of the marriage and found her testimony credible. Without documents or objective evidence that contradicts Cheryl’s testimony, we cannot reverse the trial court’s credibility determination unless it is “so internally inconsistent or implausible on its face, that a reasonable fact-finder would not credit the witness’s story.” Sportsman Store of Lake Charles, Inc. v. Sonitrol Sec. Sys. of Calcasieu, Inc., 99-201, p. 7 (La.10/19/99), 748 So.2d 417, 421. The record does not contain such evidence; therefore, we cannot reverse the trial court’s determination.

| BConclusion

The judgment of the trial court is affirmed, and all costs are assessed to Jeffrey Diggs.

AFFIRMED.

      . The trial court stated the emails produced by Cheryl were written in 2004; however, when Cheryl’s attorney questioned Jeffrey about the emails, she referenced the emails as having been written in 2002.


text:
    Juanita Early CLINKSCALES, Executrix, Succession of Mariah E. Walker v. The COLUMNS REHABILITATION AND RETIREMENT CENTER.
    No. 08-1312.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.

      James Roy Chrishon, Alexandria, LA, for Plaintiff/Appellee, Juanita Early Clinkscales.
    C. Blair Bright, Christovich & Kearney, LLP, New Orleans, LA, for Defendant/Appellant, The Columns Rehabilitation and Retirement Center.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS and MARC T. AMY, Judges.
   AMY, Judge.

hUpon the death of a resident, the defendant nursing home refunded the unused money paid in advance by the resident to the responsible party listed on an admission agreement. The executrix of the deceased resident’s succession brought a conversion suit against the defendant, claiming that the refund should have been paid to the estate. The defendant contended that it did not convert the funds, rather it acted pursuant to the agreement. The trial court ruled in favor of the executrix, finding that the defendant failed to introduce evidence of the responsible party’s euratorship and that the contract could not be relied upon because it did not contain the responsible party’s signature. Further, the trial court found that the laws on succession could not be superseded by a contract. The defendant appeals, seeking to reverse the trial court’s determinations and urging that the action has prescribed. For the following reasons, we affirm.

Factual and Procedural Background

Mariah Early Walker became a resident of the Columns Rehabilitation and Retirement Center, the defendant, in September 2008. She entered into an Admission Agreement, naming her niece, Connie Smith, as the responsible party. The agreement bears only the signatures of Ms. Walker and a representative of the defendant. This agreement stated that “[a]ll refunds due to the Resident .... shall be made payable to the Resident, his/her assigned representative or a governmental or legal agency as directed by law.” The defendant also had a Resident Refund Procedure which provided: “[i]n the case of the discharge or death of a resident, refund or unused charges paid in advance by the resident of family will be made promptly to the resident or responsible party.” After Ms. Walker’s death in August 2006, the defendant paid the balance on the account, $2,395.20, to Ms. Smith. The plaintiff, | ¿Juanita Early Clinkscales, was confirmed as the executrix of Ms. Walker’s succession on December 19, 2006. On March 6, 2008, the plaintiff filed suit against the defendant, alleging that the account balance was tor-tiously converted insofar as the defendant made Ms. Smith the recipient of the refund, rather than Ms. Walker’s succession.

After a bench trial, the trial court ruled in favor of the plaintiff, finding that the defendant failed to produce evidence of Ms. Smith being Ms. Walker’s curator and that even if such evidence was present in the record, the Admission Agreement was invalid as to Ms. Smith because she did not sign it. Further, it found the agreement was trumped by the succession laws of Louisiana, one of which provides that “[p]rior to the qualification of a succession representative, only a universal successor may represent the decedent with respect to the heritable rights and obligations of the decedent.” La.Civ.Code art. 935.

The defendant appeals, contending that the plaintiffs claim for conversion of property prescribed before she brought suit. Additionally, it assigns as error:

(1) the finding [that] the Admission Agreement contract between Mariah Early Walker and the Columns Rehabilitation and Retirement Center was invalid because it was not signed by Connie Smith, the individual named by Ms. Walker in the contract as her “responsible party.”
(2) the finding [that] the Admission Agreement contract seeks to supersede, and acts in derogation of, the express provisions of the testate laws of the State of Louisiana.

Discussion

Standard of Review

The appellate standard of review in regard to contractual interpretations is as follows:

| oWhere factual findings are pertinent to the interpretation of a contract, those factual findings are not to be disturbed unless manifest error is shown. However, when appellate review is not premised upon any factual findings made at the trial level, but is, instead, based upon an independent review and examination of the contract on its face, the manifest error rule does not apply. In such cases, appellate review of questions of law is simply whether the trial court was legally correct or legally incorrect, (citations omitted).

Evangeline Parish Sch. [Bd.] v. Energy Contr., 617 So.2d 1259, 1265 (La.App. 3 Cir.), writ denied, 624 So.2d 1228 (La.1993) (quoting Borden, Inc. v. Gulf States Utilities Co., 543 So.2d 924, 928 (La.App. 1 Cir.), writ denied, 545 So.2d 1041 (La.1989)).

Prescription

The defendant asserts in its brief that the plaintiffs claim had prescribed before suit was filed in the trial court. The fourth circuit in Alomang v. Freeport-McMoran, Inc., 97-1349, p. 1 (La.App. 4 Cir. 3/4/98), 718 So.2d 971, 973, writ denied, 98-1352 (La.7/2/98), 724 So.2d 734, stated:

Defendants suggest in brief that plaintiffs tort claims have prescribed. No exception of prescription was filed below. An exception of prescription may be filed for the first time in this Court. LSA-C.C.P. art. 2163.[ ] However, the defendants have not done so. They have only mentioned the issue in their brief. An exception of prescription presented only in argument either orally or by way of memorandum or brief is not sufficient. Rapp v. City of New Orleans, 95-CA-1638 p. 50 (La.App. 4 Cir. 9/18/96); 681 So.2d 433, 457, writ denied, 96-2925 (La.1/24/97), 686 So.2d 868.

^Because the defendant did not file an exception of prescription in the trial court or in the appellate court before the case was submitted for a decision and only raised the issue in its brief, we do not consider the argument.

The Validity of the Contract

In its second assignment of error, the defendant contends that the trial court erred in finding that the contract was invalid because Connie Smith did not sign it. In its discussion of this assignment of error, the defendant questions the trial court’s reliance on the absence of evidence regarding Ms. Walker’s interdiction: “[t]hat Connie Smith became a co-curator of Walker’s affairs some three years after Walker signed the Admission Agreement contract has no bearing on the validity of the contract and its governance of the issue of refunds upon discharge or death of Ms. Walker.”

As the contract is a distinct issue from Ms. Smith’s legal relation to Ms. Walker while she was alive, we discuss them separately. The reason for the distinction lies in the two provisions that are presented on behalf of the defendant. The first pertinent provision is found in paragraph 8 of the Admission Agreement:

8. Refund Policy
Refunds payable shall be confirmed by audit by the Facility’s central accounting service. All refunds due to the Resident:
a) Shall be made regardless of the reason for the Resident leaving.
b) Shall be remitted with a full accounting when requested.
c) Shall be made payable to the Resident, his/her assigned representative or a governmental or legal agency as directed by law.

The second provision at issue is located in the defendant’s Resident Refund Procedure, which provides, “[i]n the case of the discharge or death of a resident, refund or unused charges paid in advance by the resident or family will be made |spromptly to the resident or responsible party.” On the one hand, as expressly provided for in the contract, the money is payable to Ms. Walker’s assigned representative or an agent as provided by law. On the other hand, the balance is owed to Ms. Walker’s responsible party.

The Admission Agreement’s language suggests that the money would go to Ms. Walker’s legal representative. This provision is seemingly what prompted the trial court to discuss the absence of the Judgment of Interdiction in the record. Without the legal document confirming the identity of Ms. Walker’s curator, the court cannot find that Ms. Smith qualified as such. Thus, she did not fulfill the requirements laid out in Paragraph 8 of the Admission Agreement and is not entitled to the refund under that provision.

Insofar as the defendant contends that Ms. Smith is the rightful owner of the account balance pursuant to her status as a responsible party as provided for in the Resident Refund Procedure, we refer to the Admission Agreement to determine who is a responsible party. The Admission Agreement provides, ‘[a]ll parties identified and signing below as Co-Responsible Parties shall also be deemed to be a Party to this agreement and hereby agree to all its terms and provisions. (The Responsible Party and Co-Responsible Parties are hereinafter singularly and eol-lectively referred to as ‘Responsible Party.’ ” As held by the trial court and by the terms of the Admission Agreement, Ms. Smith would have needed to affix her signature to the contract to qualify as a Responsible Party.

We find further support for this contention in the section of the contract entitled “Miscellaneous Provisions,” which provides:

This Agreement constitutes the entire Agreement among the Parties pertaining to the subject matter contained in it and supersedes all prior | fiagreements, representations and all understandings of the Parties. No supplement, modification or amendment of this Agreement shall be binding unless expressed as such and executed in writing by all Parties hereto.

In light of the contract’s language providing that a signature is required in order for an individual to be deemed a responsible party and the above language mandating that the contract’s terms govern in the absence of a written alteration, the defendant’s argument that it distributed the account balance to Ms. Smith pursuant to the contract fails. Further, in order for the defendant to be able to enforce an obligation assumed by Ms. Smith, a third party, the contract must be in writing. See La.Civ.Code art. 1821.

The defendant then asserts that “[t]he Admission Agreement, insofar as it provides for refunds of balances on the account of Ms. Walker upon the uncertain event of her discharge or death, is a perfectly valid aleatory contract with a provision for the benefit of a third person, Ms. Connie Smith.” In support of its argu-merit, it set forth the language of La.Civ. Code art.1978, which states: “[a] contracting party may stipulate a benefit for a third person called a third party beneficiary. Once the third'party has manifested his intention to avail himself of the benefit, the parties may not dissolve the contract by mutual consent without the beneficiary’s agreement.” The classification of the Admission Agreement as a stipulation pour autrui fails in two respects. First, the supreme court in Joseph v. Hosp. Serv. Dist. No. 2 of Parish of St. Mary, 05-2364, p. 15 (La.10/15/06), 939 So.2d 1206, concluded that while there is no statutory requirement that a stipulation pour autrui be in writing, there may be contractual provisions between the parties that state otherwise. It held:

17Although the appellate court correctly found it unnecessary for a stipulation pour autrui to be in writing, these parties contracted that their entire agreement must be in writing. The contract provides: “This Agreement contains the entire understanding of the parties and shall be modified only by an instrument in writing signed on behalf of each party hereto.” Thus, these parties contractually limited themselves to a written contract.

Id. at 1215. As discussed above, the contract states that “[n]o supplement, modification or amendment of this Agreement shall be binding unless expressed as such and executed in writing by all Parties hereto.” Accordingly, without a written provision naming Ms. Smith as a third party beneficiary, she cannot qualify as such.

Secondly, La.Civ.Code 1978 contemplates a situation where a third party is given the benefit of an obligation agreed to by others. The supreme court in Joseph, 939 So.2d at 1212, offered guidance in determining the existence of a stipulation pour autrui:

Our study of the jurisprudence has revealed three criteria for determining whether contracting parties have provided a benefit for a third party: 1) the stipulation for a third party is manifestly clear; 2) there is certainty as to the benefit provided the third party; and 3) the benefit is not a mere incident of the contract between the promisor and the promisee. In applying these criteria, we ultimately rely on the words of Article 1978 that the contract must “stipulate a benefit for a third person.”

While satisfaction of the first criterion is arguably problematic, the real problem lies in the fulfillment of the third prong. The purpose of the Admission Agreement was to set forth the rights and duties of both the resident and the nursing home. The responsible party, who is “deemed to be a Party to [the] Agreement” by virtue of the Admission Agreement’s own language, is liable for the obligations outlined in the contract. The fact that the responsible party might also receive the account balance |supon the resident’s discharge or death was merely an incidental benefit. Accordingly, Ms. Smith does not meet the statutory and jurisprudential definition of a third party beneficiary.

Testamentary Laws

The defendant’s final assignment of error concerns the trial court’s ruling regarding the governing authority of the testamentary laws of Louisiana. It argues that the “Admission Agreement does not act in derogation of the provisions of the testamentary laws of the state.” Because we find the Admission Agreement to be invalid as it relates to the distribution of the refund money, discussion of its relation to the rules on succession is moot.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed in favor of Juanita Early Clinkscales, executrix of Mariah E. Walker’s succession. All costs of this proceeding are assessed against the defendant, The Columns Rehabilitation and Retirement Center.

AFFIRMED.

      . Louisiana Code of Civil Procedure Article 2163 provides:
      The appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record.
      If the ground for the peremptory exception pleaded in the appellate court is prescription, the plaintiff may demand that the case be remanded to the trial court for trial of the exception.

      . Louisiana Civil Code Article 1821 provides, in pertinent part: "[a]n obligor and a third person may agree to an assumption by the latter of an obligation of the former. To be enforceable by the obligee against the third person, the agreement must be made in writing.”

      . For purposes of this argument only, we proceed as though Ms. Smith signed the agreement and accepted her position as a responsible party. For all other purposes, we acknowledge that Ms. Smith did not qualify as a responsible party.


author: GENOVESE, Judge. SAUNDERS, J.,

text:
    Renee VENTROY v. LAFAYETTE PARISH SCHOOL BOARD.
    No. 08-1249.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.

      J. Isaac Funderburk, Funderburk & Herpin, Abbeville, Louisiana, for Plain-tiffAppellant, Renee Ventroy.
    Dawn L. Morris, Law Office of Dawn L. Morris, Lafayette, Louisiana, for Defen-danf/Appellee, Lafayette Parish School Board.
    Jonathan C. Augustine, The Augustine Firm, APLC, Baton Rouge, Louisiana, for Amicus Curiae, The Louisiana Association of Educators.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| tPIaintiff, Renee Ventroy, appeals the trial court’s judgment in favor of the Defendant, Lafayette Parish School Board (the Board), upholding the Board’s termination of its employee, Ms. Ventroy. For the following reasons, we affirm.

FACTS

Ms. Ventroy was employed by the Board as an itinerant, non-tenured employee. On March 21, 2007, the Board voted to adopt the recommendation of the Superintendent of the Board, Dr. James Easton, to terminate Ms. Ventroy. Ms. Ventroy then filed a Petition for Declaratory Judgment and Writ of Mandamus in the Fifteenth Judicial District Court, Parish of Lafayette, naming the Board as a Defendant therein,

At the May 12, 2008 trial, the parties agreed to submit the matter to the trial court on briefs and jointly introduced exhibits. The trial court issued written Reasons for Ruling on June 6, 2008, and signed a judgment in accordance therewith on July 7, 2008, upholding the Board’s decision to terminate Ms. Ventroy. It is from this judgment that Ms. Ventroy appeals.

ISSUES

Ms. Ventroy presents the following issues for our review:

1. [whether] the trial court committed manifest error when it held that the Lafayette Parish School Board substantially complied with its school employee termination policy[; and]
2. [whether] the trial court committed manifest error when it held that Ms. Ventroy was not deprived of her employment rights in the termination process.

LAW AND DISCUSSION

In the instant matter, the trial court drafted extensive and well-founded Reasons for Ruling. Having reviewed the applicable law and the record of these I ^proceedings, we find the written Reasons for Ruling to be factually and legally correct and find no abuse of discretion or manifest error therein. Accordingly, we excerpt the trial court’s written Reasons for Ruling (footnotes omitted) which follow and adopt them as our own:

It is agreed by all parties that during her employment with the LAFAYETTE PARISH SCHOOL BOARD, VEN-TROY, was an itinerant, non-certifred teacher, Outreach Facilitator. An Outreach Facilitator teaches students with behavioral problems. VENTROY rotated between the three schools, Alice Boucher Elementary, L. Leo Judice Montessori Elementary, and Westside Elementary. As an Outreach Facilitator, VENTROY worked full days at Alice Boucher Elementary on Mondays, Wednesdays, and Fridays. On Tuesdays and Thursdays[,] VENTROY worked half days at Westside and Judice Elementary schools. The Outreach Facilitator reported to the principals of each school. The GCN Policy[] of the LAFAYETTE PARISH SCHOOL BOARD applied at all relevant times to the termination of RENEE VENTROY beeause[,] as a non-certified teacher, she was not tenured.
The Louisiana legislature has required that school boards in this state develop a policy for the dismissal of school employees that have not attained tenure.
|o,Not later than January 1, 1988, each city and parish school board shall develop and adopt rules and policies which it shall use in dismissing school employees who have not attained tenure in accordance with applicable provisions of law and whose dismissal is not a result of a reduction in force, as provided for in R.S. 17:814. The school board shall provide a procedure by which any employee, whose dismissal is governed by this Section, may participate in the development of the rules and policies. Such rules and policies shall be made available for public inspection within ten days after they are finally adopted. La. R.S. 17:81.5.
In accordance with the directive in La. R.S. 17.81.5, the BOARD adopted [its] GCN Policy on August 7, 1974[,] for the dismissal of other nonprofessional personnel employed by the BOARD. The GCN Policy was last revised by the board on October 6, 1999. The plaintiff in this suit claims that the BOARD did not follow the policy and procedures of [its] GCN [P]olicy in terminating her employment.
It is documented that VENTROY’s supervisor, the principal of Alice Boucher Elementary, Sandra Billeau-deau[,] met with VENTROY on December 11, 2006[,] to discuss excessive absenteeism and to explain that VEN-TROY must follow the BOARD’S policy regarding absences. On February 9, 200[7], Billeadeau and the Director of Human Resources for the BOARD, Ramona Bernard, met with VENTROY to again discuss her excessive absenteeism without medical documentation. The memo summarizing the meeting detailed that if VENTROY failed to comply with the BOARD’S policy, “[her] principal would notify Superintendent James Easton, and he shall recommend disciplinary action to the board, which may include termination of [her] employment with the school district.” VENTROY signed the February 9, 2007 memo to acknowledge receipt of the document.
At the February 9, 2007 meeting, the plaintiff was given verbal and written warnings by her direct supervisor, Billeaudeauf,] and Director of Human Resources, Bernard, about the consequences of missing work without providing medical documentation to excuse the absence. VENTROY missed work on February 16, 22, and 23. She provided a medical excuse from Dr. Joli-vette to school officials at Boucher, Ju-dice, and Westside Elementary schools upon her return to work on February 26 and 27, for her February 22 and 23 absences. However, although she requested that Dr. Toce’s staff fax a medical excuse to school officials to verify her reason for absence on February 16, the plaintiff did not personally deliver such medical documentation. Further, no school official was able to testify that they received an excuse for the February 16th absence.
iJBoth Billeaudeau and Bernard verbally recommended to Superintendent Easton that VENTROY’s employment be terminated. Dr. Easton agreed with the recommendation and wrote a letter on February 26, 2007[,] to inform VEN-TROY that he would be recommending to the BOARD, at its March 21, 2007 meeting, that VENTROY be terminated from her position with the BOARD. The plaintiff attended the BOARD meeting and submitted exhibits in support of her continued employment. However, the BOARD adopted the Superintendent’s recommendation and terminated VENTROY’s employment. VENTROY was given written notice of the termination by letter from Ramona Bernard, dated March 28, 2007.
The Louisiana Constitution and legislature entrust the administration of the school system to the parish school boards and not to the courts. The School Board is vested with broad discretion in the administration of the school system; nevertheless, due process requires judicial review to ensure that the school boards do not abuse this discretion. Judicial review is limited, and where there is a rational basis, which is supported by substantial evidence for the school board[’]s discretionary determination, the courts cannot and should not substitute them judgment for that of the school board. Scott v.[O]uachita Parish Sch. Bd., 768 So.2d 702, 711 (La.App. 2 Cir.2000); Myres v. Orleans Parish School Board, 423 So.2d 1303 (La.App. 4 Cir.1982), writ denied, 430 So.2d 657 (La.1983).
The Supreme Court has accepted the following definition of “substantial evidence:”
[“ ‘JSubstantial evidence!”] has been defined as [’]evidenee of such quality and weight that reasonable and fair-minded men in exercise of impartial judgment might reach different conclusions.’ ” (citations omitted) Wise v. Bossier Parish School Board, 851 So.2d 1090, 1094 (La.2003).
The district court must give great deference to the school board[’]s findings of fact and credibility. Arriola v. Orleans Parish Sch.Bd., 809 So.2d 932, 941 (La.2002). The district court may not substitute its judgment for that of the school board or interfere with the school board’s good faith exercise of discretion. Howard v. W. Baton Rouge [Parish] Sch. Bd., 793 So.2d 153 (La.2001). Thus, the school board[’]s judgment should not be reversed in the absence of a clear showing of abuse of discretion. Gaulden v. Lincoln Parish School Board, 554 So.2d 152, 157 (La.App. 2 Cir.1989), writ denied, 559 So.2d 126 (La.1990).
The School Board is given great discretion in fashioning, adopting[,] and implementing its plan[,] and the standard of review used |5by courts when called upon to review whether a school board complied with its own policies is substantial compliance. Harris v. West Carroll Parish School Board, 605 So.2d 610 (La.App. 2 Cir.1992). Reasons for dismissal are largely in the sound discretion of the school board. Gaulden, supra. General warnings are adequate against conduct that the teacher should know is unacceptable. Gaulden, supra; Wiley v. Richland Parish Sch. Bd., 476 So.2d at 439 (La.App. 2 Cir.1985). It is also well established that determinations of credibility are within the purview of the school board. Gaulden, supra; Wiley, supra.
VENTROY, as a non-tenured employee of the BOARD, did not have a constitutionally protected property interest in her continued employment and, therefore, was not entitled to due process over and above that provided by the School Board’s policy. See Scott v. Ouachita Parish School Board, supra.
The BOARD has shown that VEN-TROY was given notice on December 11, 2006[,] and on February 9, 2007, that her excessive absenteeism without medical documentation was unacceptable. The February 9, 2007 memo that VEN-TROY signed [ ] explained that subsequent absences without medical documentation would result in disciplinary action by the BOARD, which may include termination. The February 16, 2007 absence took place after VEN-TROY left the campus of Alice Boucher Elementary without obtaining the permission of her supervisor, Billeaudeau. Upon her return to work on February 16, 2007, VENTROY failed to provide medical documentation for the February 16 absence. This failure to provide a medical excuse for an absence was within one week of the February 9, 2007 meeting. The plaintiffs actions were contrary to the BOARD’S policy and contrary to the directives of her supervisor.
Billeaudeau and Bernard verbally recommended VENTROY’s termination to Dr. Easton. In turn, Dr. Easton’s February 26, 2007 letter gave the plaintiff written notice that her termination was being recommended to the BOARD. VENTROY was given notice of the March 21, 2007 hearing before the BOARD regarding Dr. Easton’s recommendation!,] and, in the letter, the plaintiff was given an opportunity to attend and to address the BOARD at that meeting. Further, in the letter, Dr. Ea-ston gave VENTROY an opportunity to resign from her position. The plaintiff did not resign but, instead, attended and participated in the March 21, 2007 BOARD meeting. VENTROY was given written notice of the BOARD’S action in terminating her employment by Ramona Bernard’s March 28, 2007 letter.
The request for the February 9, 2007 meeting was not submitted in writing by Billeaudeau, as is called for by GCN [P]olicy. Yet, it is evidenced by her attendance that VENTROY received notice of the meeting and that potential reasons for her termination were discussed. | fiThe supervisor for the BOARD’S outreach program, Brandy Gonzales, was not present for the meeting on February 9, 2007, to discuss excessive absenteeism with VENTROY. However, VENTROY’s direct supervisor, Billeaudeau, and the Director of Human Resources, Bernard, were present for the conference with VENTROY. Improvement was not effected after VENTROY met with Billeaudeau and Bernard.
Next, Billeaudeau and Bernard met personally with Dr. Easton to discuss VENTROY’s absences and to verbally recommend terminating her employment. The recommendation to terminate was not made in writing to the Superintendent Easton. Therefore, the verbal recommendation to the Superintendent was not in technical compliance with GCN [P]olicy.
VENTROY submitted Dr. Toce’s medical excuse for [sic] the BOARD for its review at the March 21, 2007 meeting. After review of the excuse, the BOARD’S Director of Human Resources, Bernard, testified that even if the schools had received the medical document from Dr. Toce, it would not have been compliant with the BOARD’S policy because it did not contain a diagnosis for the medical problem.
Any failure by the BOARD to follow procedure to the letter did not adversely affect the plaintiff. At no point was VENTROY deprived of her employment rights in the termination process. She was given notice in two meetings of her failure to comply with the BOARD’S policy regarding absences and was given an opportunity to comply with the policy. VENTROY was apprised of the potential consequence of termination should she not provide medical documentation for future absences. Additionally, the plaintiff was allowed to attend the March [21], 2007 BOARD meeting and to present any evidence that would support her continued employment with the BOARD. For these reasons, there was a rational basis and substantial evidence for the BOARD’S action in terminating VENTROY, and the actions of the BOARD were in substantial compliance with the policy in place for the dismissal of nonprofessional personnel.

The standard of review in this case is whether there was a “clear showing of abuse of discretion.” Gaulden, 554 So.2d at 157 (citing State ex rel. Piper v. E. Baton Rouge Parish Sch. Bd., 213 La. 885, 35 So.2d 804 (La.1948); Lewis v. E. Feliciana Parish Sch. Bd., 452 So.2d 1275 (La.App. 1 Cir.), writ denied, 458 So.2d 123 (La.1984)). Though there was not complete compliance with the Board’s policy, the record clearly indicates that there was substantial compliance with said policy, that Ms. Ventroy was |7afforded due process of law, and that she was not unduly prejudiced by the degree of compliance therewith. Despite being forewarned on February 9, 2007, about excessive absenteeism and potential termination as a result thereof, Ms. Ventroy knowingly and willingly left school on February 16, 2007, without approval. Ms. Ventroy was given adequate notice and a hearing regarding her proposed termination, and she appeared at said hearing on March 21, 2007, with her attorney. The facts and record before us do not reflect the requisite “clear showing of abuse of discretion” by the Board or the trial court.

DECREE

For the foregoing reasons, the judgment of the trial court in favor of the Lafayette Parish School Board upholding its termination of Renee Ventroy is affirmed. Costs of this appeal are assessed to Plaintiff/Appellant, Renee Ventroy.

AFFIRMED.

SAUNDERS, J., dissents and assigns written reasons.

SAUNDERS, J.,

dissents and assigns written reasons.

| j There is no doubt that the school board failed to comply with its own procedure for dismissal of non-tenured employees. In Thomas v. Evangeline Parish School Bd., 98-1458 (La.App. 3 Cir. 3/24/99), 733 So.2d 102, this court found that, even where the school board has ample reason to fire an employee, if the board failed to follow proper procedure, the employee should be reinstated, retroactive to the date of his or her dismissal. It is my opinion that we should follow the rule of Thomas and reinstate Ms. Ventroy. Accordingly, I respectfully dissent.

      . The GCN Policy adopted by the Board relative to its “DISMISSAL OF OTHER NONPROFESSIONAL PERSONNEL” set forth the following:
      The principal recommends in writing to the Director of Human Resources that the employee appear before a committee consisting of the principal, supervisor and the Director of Human Resources or Assistant in Human Resources to discuss the deficiencies.
      If improvement or change is not effected after appearing before the committee, a recommendation to terminate the employee shall be made jointly by the supervisor and the principal to the Superintendent in writing.
      At the request of the Superintendent, the Director of Human Resources shall inform the employee that he/she is to appear before a committee consisting of the principal, the supervisor and the Director of Human Resources or Assistant in Human Resources at which time the reason(s) for dismissal will be discussed.
      At this time, the employee will be given the opportunity to resign. If the employee chooses not to resign, the Superintendent's recommendation shall be presented to the Board for action. The employee shall be informed in writing of the Board's final decision.
      A copy of all documents pertaining to an employee's performance shall be placed in the appropriate official personnel file, Human Resources Department, Lafayette Parish School Board. A copy of the above shall also be provided the employee.


text:
    Dawn GARDNER, Individually, on Behalf of the Estate of Thomas Frederick Gardner, and on Behalf Of The Minors, Morgan Gardner and Melissa Gardner, and Tiffany Gardner, Individually, Plaintiffs-Appellees v. Harry DUCOTE, Progressive Security Insurance Company, and State Farm Insurance Company, Defendants-Appellants.
    No. 44,477-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 2, 2009.
    Rehearing Denied May 7, 2009.

      Colvin Law Firm by James H. Colvin, Pamela N. Breedlove, Shreveport, for Appellants.
    Pettiette, Armand, Dunkleman, Wood-ley, Byrd & Cromwell, LLP, by Lawrence W. Pettiette, Donald James Armand, Jr., Joseph Samuel Woodley, Shreveport, for Appellees.
    Before DREW, MOORE and LOLLEY, JJ.
   ORDER

hOn February 26, 2009, this court issued a rule to show cause in response to the trial court’s issuance of an amended order of appeal replacing State Farm Automobile Insurance Company with State Farm Fire and Casualty Company as the party appellant. Both entities were parties to the underlying litigation, retained the same counsel and had their claims adjudicated in the September 15, 2008, judgment which is the subject of this appeal. The motion for appeal filed on October 2, 2008, was filed by State Farm Automobile Insurance Company and the order of appeal granted same to State Farm Automobile Insurance Company only. •

Because the judgment appealed was rendered against State Farm Fire and Casualty Company for its policy’s limits of $1,000,000.00 plus legal interest, and denied all remaining claims (including those made against State Farm Mutual Automobile Insurance Company), State Farm Mutual Automobile Insurance Company has no appealable interest. Salassi v. Salassi, 220 La. 785, 57 So.2d 684 (1952); White v. Hill, 168 La. 92, 121 So. 585 (1929); Acadian Hentage Realty v. City of Lafayette, 425 So.2d 388 (La.App. 3d Cir.1982), and Simpson v. Kimbell Milling Company, 164 So.2d 637 (La.App. 3d Cir.1964), writ refused, 246 La. 834, 167 So.2d 665 (1964).

Nevertheless, on February 13, 2009, State Farm Mutual Automobile Insurance Company and State Farm Fire and Casualty Company, filed the motion leading to the aforementioned amended order of appeal signed that same date. |2Noticing the discrepancy, this court issued a rule ordering the parties to show cause why the amended order should not be vacated and the appeal dismissed.

In response, State Farm Fire and Casualty argues that the trial court retained jurisdiction under La. C.C.P. arts.2088 and 2132 to issue the amended order. In support thereof, it cites the First Circuit Court of Appeal’s decisions in Dickerson v. Krogers, Inc., 504 So.2d 1008 (La.App. 1st Cir.1987), and Faught v. Ryder/P*I*E Nationwide, Inc., 577 So.2d 198 (La.App. 1st Cir.1991). These cases are distinguishable from the present case in that the erroneous party appellants therein were no longer or never were parties to the litigation from which the appeal was taken. Accordingly, there could be little doubt as to who had actually taken the appeal in both Dickerson and Faught.

To the extent that these cases stand for the proposition that a court can substitute one party to the litigation for another as the party appellant in an amended order moved for after all appeal delays have run, we choose not to follow them. Regardless of how inadvertent the error may be or plausible the explanation, allowing the type of amendment made by the trial court herein is the equivalent of granting an untimely appeal, a jurisdictional defect which deprives the court of appeal and any other court the jurisdictional power and authority to reverse, revise, or modify a final judgment. Baton Rouge Bank & Trust Co. v. Coleman, 582 So.2d 191 (La.1991).

Accordingly, we deem the amended order of appeal signed on February 13, 2009, to be without effect. Furthermore, because State Farm Mutual Automobile Insurance Company to whom a timely appeal was granted on October 8, 2008, does not have an appealable interest, we dismiss the appeal. Because the appellee’s answer only seeks relief against State Farm Fire and Casualty Company whose appeal this court is without jurisdiction to consider, this court is equally without jurisdiction to consider an answer thereto. Langlinais v. David, 283 So.2d 95 (La.App. 3d Cir.1973); McNeill v. McNeill, 257 So.2d 767 (La.App. 4th Cir.1972). Accordingly, plaintiffs’ answer is also dismissed.

APPLICATION FOR REHEARING

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

Rehearing denied.

GASKINS, J., would grant rehearing.


author: PEATROSS, J.

text:
    FIRST LOUISIANA BANK, Plaintiff-Appellant, v. MORRIS & DICKSON CO., LLC, Defendant-Appellee.
    No. 44,187-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 8, 2009.

      William E. Byram, Ltd., for Appellant.
    Kenneth R. Antee, Jr., for Interve-nor/Appellant, Ronald Tuminello.
    Ayres, Warren, Shelton & Williams, L.L.C. by Curtis Ray Shelton, Shreveport, for Appellee.
    Before STEWART, CARAWAY & PEATROSS, JJ.
   PEATROSS, J.

| plaintiff, First Louisiana Bank (“First Louisiana”), filed suit against Defendant, Morris & Dickson Co., LLC (“Morris & Dickson”), seeking recovery for loans it made to Material Management Systems, Inc. (“MMS”). Morris & Dickson had hired MMS to complete a project and the loans were to facilitate the work by MMS. MMS defaulted on the loans and First Louisiana asserted that Morris & Dickson had guaranteed the loans by letter stating that it would include First Louisiana as a payee on checks made payable to MMS. The trial court granted an exception of prescription filed by Morris & Dickson. First Louisiana and Ronald Tuminello, in-tervenor, appeal. For the reasons stated herein, we reverse the ruling of the trial court and remand the matter for further proceedings.

FACTS

Morris & Dickson hired MMS to install an intertake pallet pick system in a warehouse owned by Morris & Dickson in Cad-do Parish. Morris & Dickson issued three purchase orders to MMS regarding the installation. The first purchase order, # 031223-02, was in the amount of $196,450.50.

MMS sought financing from First Louisiana. First Louisiana agreed to make two loans to MMS on the condition that Morris & Dickson would include First Louisiana as an additional payee on its check to MMS in payment of the first purchase order. As requested by Ron Boudreaux, President and Chief Executive Officer of First Louisiana, Paul Dickson, Vice President of Morris & Dickson, authored a letter, dated January 15, 2004, in which he stated:

|2Payment for [purchase order # 031223-02] issued to Material Management Systems will be made payable to Material Management Systems and First Louisiana Bank Attn: Ron Bou-dreaux.

On receipt of the letter, First Louisiana made the first loan to MMS on January 26, 2004, in the amount of $50,070 with a maturity date of April 26, 2004. The second loan was made on February 26, 2004, in the amount of $65,072 with a maturity date of May 26, 2004. MMS also gave First Louisiana a security interest in the first purchase order and the bank made the required UCC filings. In addition, Bob Eizel of MMS and Ronald Tuminello, a longtime customer of the bank, issued continuing guarantees on both notes.

MMS did not complete the project to the satisfaction of Morris & Dickson and defaulted on the loans. Mr. Tuminello, however, had been paying the interest on the loans over the course of the project. Following the default by MMS, Mr. Bou-dreaux discovered from Mr. Tuminello that Moms & Dickson had issued checks toward the project payable only to MMS, failing to include First Louisiana as a payee. In June 2004, Mr. Boudreaux discussed the situation with Ray Skinner of Morris & Dickson and Mr. Tuminello with no resolution. On August 20, 2004, the bank sent demand letters to Morris & Dickson to no avail.

On June 13, 2005, First Louisiana sued MMS and Mr. Eizel, reserving its rights against Mr. Tuminello (because Mr. Tumi-nello had kept the interest payments current). First Louisiana obtained a default judgment against MMS and Mr. Eizel recognizing the security interest in the purchase order. By that time, however, MMS and Mr. Eizel were in bankruptcy. | oFirst Louisiana then sued Morris & Dickson on September 8, 2006, for breach of the agreement of Morris & Dickson to include the bank as a payee on the check to MMS in payment of the first purchase order. Morris & Dickson answered the suit, averring that its agreement to include the bank as an additional payee on the check in payment of the purchase order was conditioned on notification, authenticated by First Louisiana, to Morris & Dickson that “an amount due” had been assigned to First Louisiana, which notification was never provided. Morris & Dickson denied that it had made any commitment to First Louisiana and stated that the letter “was not an offer to contract with First Louisiana.”

On May 21, 2007, Mr. Tuminello filed a petition for intervention, alleging breach of contract by Monis & Dickson and seeking reimbursement of the payments made by him on the assigned purchase order.

On January 17, 2008, Morris & Dickson filed a peremptory exception of prescription. Morris & Dickson characterized the claims of First Louisiana and Mr. Tuminel-lo as ones of detrimental reliance and urged that the claims had prescribed because the bank knew that Morris & Dickson had not included the bank as an additional payee on the subject check on or before August 30, 2004 (recall that the bank sent demand letters to Morris & Dickson on August 20, 2004), and suit was not filed until September 8, 2006. On March 31, 2008, the trial court sustained the exception as to the claims against Morris & Dickson and the claims in Mr. Tumi-nello’s petition of intervention. The trial court reasoned that the letter authored by |4Mr. Dickson was “at best ... an agreement to place the bank on the check” and that the bank knew no later than June 2004 that that had not been done by Morris & Dickson. The court further determined that the failure of Morris & Dickson to perform as agreed was either negligent or intentional. Based on this conclusion, the court applied the one-year prescriptive period for torts and, finding that more than one year had elapsed before the filing of the suit on September 8, 2006, the court sustained the exception. This appeal ensued.

DISCUSSION

On appeal, First Louisiana challenges the ruling that its claim has prescribed, assigning the following errors:

1. The trial court erred in finding the claim asserted by First Louisiana as to be one based on detrimental reliance as opposed to contract or conventional obligations.
2. The trial court erred in sustaining the peremptory exception of prescription argument based on its classification of the claims of First Louisiana as a claim for damages due to the negligent or intentional conduct of Morris & Dickson.

As second appellant, Mr. Tuminello adopts the arguments of First Louisiana, emphasizing the allegations in his petition of intervention characterizing his claim as breach of contract.

The applicable prescriptive period is determined by the character of the action disclosed in the pleadings. Johnson v. Ledoux, 42,090 (La.App.2d Cir.5/16/07), 957 So.2d 911, writ denied, 07-1482 (La.10/5/07), 964 So.2d 946, citing Starns v. Emmons, 538 So.2d 275 (La.1989). The nature of the basic underlying action determines the appropriate prescriptive ^period. Id., citing Fishbein v. LSU Health Sciences Center, 04-2482 (La.4/12/05), 898 So.2d 1260. The same actions or omissions may constitute breaches of general duties as well as contractual duties, giving rise to causes of actions in tort and contracts. In re St. Louis Encephalitis Outbreak in Ouachita Parish No. 01-4224 all cases, 41,250, et al, (La.App.2d Cir.9/1/06), 939 So.2d 563, writ denied, 06-2527 (La.12/15/06), 945 So.2d 694. Further, a plaintiff may assert both actions and is not required to plead the theory of his case. Id. When a person negligently performs a contractual obligation, he has committed an active breach of contract which may also support an action in tort. Id. While we agree that any recovery in tort in the case sub judice would clearly be prescribed, we find that the allegations in the petitions of First Louisiana and Mr. Tuminello support potential claims of breach of contract.

A contract is an agreement by two or more parties whereby obligations are created, modified or extinguished. La. C.C. art.1906. An obligation may be the promise to do or not to do something. Such obligation may be for benefit of a third party. La. C.C. art.1978. After reviewing the record in the case sub judice, including the pleadings, testimony and documentary evidence, we conclude that the claims of First Louisiana and Mr. Tuminello sound in contract. At a trial on the merits, if the letter authored by Mr. Dickson is found to constitute an agreement to obligate Morris & Dickson to perform an act, i.e., include the bank as an additional payee on the check to MMS, which it failed to perform resulting |(iin damage to First Louisiana, there could be recovery for breach of that agreement.

In addition, we note that Morris & Dickson acknowledges in its brief that it is an “account debtor” under the provisions of the Uniform Commercial Code of not only MMS, but of First Louisiana. See La. R.S. 10:9-102(3). It argues, however, that it did not have the required, authenticated notification of the assignment to become obligated thereon pursuant to La. R.S. lO^-dOOCa). See also La. R.S. 10:9-102(7). Arguably, the letter authored by Mr. Dickson acknowledges actual, albeit not authenticated, notice of the assignment of the debt, which would then call into play the requirement of subsection (a) that, once notice is established, “the account debtor [Morris & Dickson] may discharge its obligation by paying the assignee [First Louisiana] and may not discharge the obligation by paying the assignor [MMS].” (Emphasis added.) This discharge of obligation provision under the U.C.C. relates to the contractual obligations of Morris & Dickson as an account debtor and would be governed by the prescriptive period for contractual actions rather than actions in tort.

While these are certainly factual questions to be determined on the merits of the case, we must conclude that the ruling that the claims have |7prescribed based on application of the one-year prescriptive period for torts was erroneous. An action on a contract is governed by the prescriptive period of ten years for personal actions. Johnson v. Unopened Succession of Alfred Covington, Jr., 42,488 (La.App.2d Cir.10/31/07), 969 So.2d 733; La. C.C. art. 3499. Since this ten-year period has clearly not run in the instant case, we must reverse the judgment sustaining the exception of prescription.

DECREE

For the foregoing reasons, the judgment of the trial court sustaining the exception of prescription is reversed and the matter is remanded to the trial court for further proceedings. Costs of appeal are assessed to Morris & Dickson Co., L.L.C.

REVERSED AND REMANDED.

      . La. R.S. 10:9-406 provides, in pertinent part:
      (a) Discharge of account debtor; effect of notification. Subject to subsections (b) through (i) and R.S. 10:9-411, an account debtor on an account, chattel paper, or a payment intangible may discharge its obligation by paying the assignor until, but not after, the account debtor receives a notification, authenticated by the assignor or the assignee, that the amount due or to become due has been assigned and that payment is to be made to the assignee. After receipt of the notification, the account debtor may discharge its obligation by paying the as-signee and may not discharge the obligation by paying tire assignor.