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    Nathaniel GOINES, Jr. v. Dianne B. GOINES.
    No. 09-CA-994.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 9, 2011.

      Avinell J.M. Faucheux, Attorney at Law, Destrehan, LA, for Plaintiff/Appellant.

      Richard J. Brazan, Jr., Attorney at Law, Baton Rouge, LA, for Defendant/Appellee-End Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

[Jn this community property partition suit, both Nathaniel Goines (“Mr. Goines”) and Dianne Goines (“Mrs. Goines”) appeal certain portions of a judgment rendered by the trial court on April 21, 2009, as amended on May 29, 2009 and June 2, 2009. After thorough review of the record and the evidence, we affirm in part and reverse in part. Because the trial court failed to allocate the community home to either party and to complete the partition proceeding, we find that the partition has not been finalized, and accordingly, also remand for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

Dianne Goines and Nathaniel Goines were married on June 20, 1986. Mr. Goines filed for divorce on August 7, 2000. The judgment of divorce was rendered on July 26, 2001. No children were born of the marriage.

|sThe parties’ residence during the marriage, located at 2232 Country Club Drive in LaPlace, Louisiana, was purchased by Mr. Goines on August 31, 1985, prior to the parties’ marriage. Previous litigation in this case has determined that the house became community property when the parties executed an affidavit to that effect on March 30, 1988. See Goines v. Goines, 08-12 (La.App. 5 Cir. 6/19/08), 989 So.2d 794, wherein this court reversed the trial court, which had found the house to be Mr. Goines’ separate property. That judgment was not appealed further. The house was refinanced in April of 1988, which is pertinent to this appeal.

The community property partition suit was tried on August 28, 2008 and October 8, 2008. The trial court rendered a detailed judgment on April 21, 2009. Mr. Goines moved for a new trial, arguing about certain contradictory portions of the judgment. Mrs. Goines also moved for a new trial, arguing that other portions of the judgment were contradictory and/or in error. The trial court denied both parties’ Motions for New Trial, but issued two orders (one on May 29, 2009 and the other on June 2, 2009) that amended the April 21, 2009 judgment in order to make “internally consistent” rulings. The parties thereafter appealed the judgment, as amended.

APPLICABLE LAW

LSA-R.S. 9:2801(A)(4) directs the trial court to partition the community in accordance with the following rules:

(a) The court shall value the assets as of the time of trial on the merits, determine the liabilities, and adjudicate the claims of the parties.
(b) The court shall divide the community assets and liabilities so that each spouse receives property of an equal net value.
|4(c) The court shall allocate or assign to the respective spouses all of the community assets and liabilities. In allocating assets and liabilities, the court may divide a particular asset or liability equally or unequally or may allocate it in its entirety to one of the spouses. The court shall consider the nature and source of the asset or liability, the economic condition of each spouse, and any other circumstances that the court deems relevant. As between the spouses, the allocation of a liability to a spouse obligates that spouse to extinguish that liability. The allocation in no way affects the rights of creditors.
(d) In the event that the allocation of assets and liabilities results in an unequal net distribution, the court shall order the payment of an equalizing sum of money, either cash or deferred, secured or unsecured, upon such terms and conditions as the court shall direct. The court may order the execution of notes, mortgages, or other documents as it deems necessary, or may impose a mortgage or lien on either community or separate property, movable or immovable, as security.
(e) In the event that the allocation of an asset, in whole or in part, would be inequitable to a party, the court may order the parties to draw lots for the asset or may order the private sale of the asset on such terms and conditions as the court deems proper, including the minimum price, the terms of sale, the execution of realtor listing agreements, and the period of time during which the asset shall be offered for private sale.
(f) Only in the event that an asset cannot be allocated to a party, assigned by the drawing of lots, or sold at private sale, shall the court order a partition thereof by licitation. The court may fix the minimum bids and other terms and conditions upon which the property is offered at public sale. In the event of a partition by licitation, the court shall expressly state the reasons why the asset cannot be allocated, assigned by the drawing of lots, or sold at private sale.

It is well settled that a trial court has broad discretion in adjudicating issues ráised by divorce and partition of the community. The trial judge is afforded a great deal of latitude in arriving at an equitable distribution of the assets between the spouses. In deciding to whom an asset or liability shall be allocated, the court shall consider the nature and source of the asset or liability, the economic condition of each spouse, and any other circumstances the court deems relevant. The trial court’s allocation or assigning of assets and liabilities in the partition of community property is reviewed under the abuse of discretion standard. Legaux-Barrow v. Barrow, 08-530 (La.App. 5 Cir. 1/27/09), 8 So.3d 87.

| -MR- GOINES’ ASSIGNMENTS OF ERROR

No. 1. The trial court erred in denying reimbursement to Mr. Goines for Mrs. Goines’ failure to pay debts she represented she was paying, for encumbering the family home post termination of the community, and for her failure to pay indebtedness on the encumbrance.

In his first assignment of error, Mr. Goines argues that he is entitled to damages from Mrs. Goines for her failure to preserve and prudently manage former community property under her control, in that, after the filing of the divorce petition, she encumbered the community residence unilaterally, granting a mortgage to River Parishes Financial Services, L.L.C. (“River Parishes”) without telling Mr. Goines, and then failed to make payments on such indebtedness, and other indebtednesses, after termination of the community, in violation of LSA-C.C. art. 2369.3 and art. 2369.4.

The matter of Mrs. Goines’ mortgage on the community home and the debts associated therewith was litigated in River Parishes Financial Services, L.L.C. v. Goines, No. 48,872, Parish of St. John the Baptist. A portion of that suit was appealed in River Parishes Financial Services, L.L.C. v. Goines, 07-641 (La.App. 5 Cir. 2/6/08), 979 So.2d 518. This court’s opinion shows that the parties had reached a consent judgment that declared the mortgage and liens on the home null and void. However, that judgment was later vacated because other terms therein were not fulfilled. The record before us does not show if the parties thereafter confected another consent judgment in that suit or if the mortgage and/or liens | nwere ever resolved. Although the parties’ testimony in this proceeding suggested that some conclusion was reached in that suit, we have insufficient information about that suit before us and thus cannot base any ruling here on it. We do note that in this proceeding, a judgment rendered on March 27, 2007 determined that most of the loans Mrs. Goines made with River Parishes were found to be community obligations.

The trial court denied Mr. Goines’ claims of mismanagement because it found that he did not raise this issue in a petition, as required by LSA-C.C.P. art. 856 and LSA-C.C. art. 2354, but only in a post-trial brief. We find that Mr. Goines did in fact allege in his Motion for Judicial Partition of Community Property filed on November 12, 2002 that Mrs. Goines had mismanaged the community. However, the allegations were not more specific than that, and thus failed to plead this issue with specificity or particularity as required by LSA-C.C.P. art. 856 and LSA-C.C. art. 2354. Accordingly, we find no manifest error in the trial court’s ruling on this issue, denying Mr. Goines’ claim herein.

No. 2. The trial court erred in denying Mr. Goines’ claim for reimbursement for patio repairs, duct installation, and interest on a loan for roof repairs.

Mr. Goines next argues that the trial court erred in denying his claims for reimbursement for patio repairs ($9,300), duct installation ($856.72), and interest on a loan for roof repairs ($210.95). Mr. Goines claimed in the trial court, as he does here, that he is entitled to reimbursement for these expenses under LSA-C.C. art. 2369.3, comment (f), which states that a spouse who incurs expenses in 17compliance with the obligation imposed by this article is entitled to reimbursement for one-half the costs in accordance with general principles of the law of co-ownership as per LSA-C.C. art. 806.

The trial court found that Mr. Goines failed to prove that the repairs to the patio were the kinds of ordinary maintenance and repairs envisioned by article 806 and that Mr. Goines failed to prove that such repairs increased the value of the property. In addressing this issue in its judgment, the trial court stated:

... Nathaniel Goines’ conflicting testimony doesn’t establish that the work done to the patio was necessary, or that it increased the value of the home. Nor was there any evidence presented that shows that repairing the patio or installing air conditioning enhanced the value of the property. The Fourth Circuit held in Lentz v. Lentz that the costs of improvements made after the termination of the community, including painting, kitchen cabinets, and adding a patio, were not reimbursable. 411 So.2d 59, 61-62 (La.App. 4 Cir.1981). That court concluded that there was insufficient evidence to establish the improvements enhanced the value of the property, and that the improvements were not made for the upkeep of the property, but rather for his own use and benefit. Id. at 62.
The conflicting testimony and lack of evidence showing that the property value was enhanced by the work done on the patio require this Court to come to the same conclusion as the Fourth Circuit. There is no evidence or testimony showing that that the property value was enhanced by the work on the patio, and Nathaniel Goines’ testimony indicates that the air conditioning was for his own use and benefit. Therefore, his reimbursement claim for half of the $9,306 spent on the patio is denied.

The trial court came to a similar conclusion regarding Mr. Goines’ claim concerning the duct installation. In brief, Mr. Goines does not advance any new arguments nor counter the trial court’s conclusions. We find no abuse of the trial court’s broad discretion in its ruling denying Mr. Goines reimbursement for the patio work and the duct installation, and accordingly such ruling is affirmed.

|sMr. Goines also argues that he is entitled to reimbursement for interest on a loan he made in order to finance certain roof repairs he made to the community home. The trial court awarded him reimbursement for the roof repairs, finding that this was the type of maintenance and repair expenses contemplated by LSA-C.C. arts. 806 and 2369.3, but denied his claim for interest on the aforementioned loan, noting that Mr. Goines had not proven that a loan was necessary nor had he cited any case law that suggested such an expense was reimbursable. Mr. Goines advances no new argument here, except to suggest that he should not be penalized for taking a loan to make such a repair. We find no abuse of the trial court’s broad discretion in this area, and decline to disturb this ruling.

No. 3. The trial court erred in its designation of pension benefits and retirement funds, as per Sims, considering the stipulations of the attorneys.

Mr. Goines next argues that the trial court erred in ordering the parties to calculate the division of the parties’ pension benefits and retirement funds as per the Sims formula, considering the stipulations of the attorneys. We note that in its order of June 2, 2009, the trial court ordered the parties to calculate the retirement accounts pursuant to the Sims formula. No such calculation, however, was made in the judgment, as amended, on appeal in this proceeding. The record in this proceeding does not give this court enough information to determine whether the trial court’s order for the parties to use the Sims formula is incorrect. Additionally, we find that the attorneys’ statements in the record cited by Mr. Goines do not constitute stipulations with respect to this issue. Accordingly, we decline to disturb the trial court’s ruling on this issue.

|c)No- 4. The trial court erred in denying Mr. Goines reimbursement for sums he expended for the care and maintenance of the community property.

In the trial court, Mr. Goines argued that he was entitled to be reimbursed a total of $1,256.25 for expenses he incurred, including household cleaning supplies, garbage bags, lawnmower repairs, and similar expenses, after the community ended, as care and maintenance of the formerly community home. The trial court denied this claim, finding that these expenses were occasioned by Mr. Goines’ personal use of the property by living there, and were accordingly not reimbursable under LSA-C.C. art. 2369.8, relying on Jones v. Jones, 605 So.2d 689 (La.App. 2 Cir.1992) and Jurgelsky v. Pinac, 614 So.2d 1381 (La.App. 3 Cir.1993). Mr. Goines argues on appeal that the trial court erred in relying on these cases because they were decided prior to the enactment of Article 2369.3. Mr. Goines further argues that had he not incurred these expenses, he would have been subject to a claim by Mrs. Goines for breach of fiduciary duty to “preserve and manage” the community property.

Mr. Goines is correct that the enactment of Article 2369.3 changed the law. It imposed on a spouse who has control of former community property an affirmative duty “to preserve and to manage” such property. This article imposes a higher standard of care than that provided by LSA-C.C. art. 799 for ordinary co-owners. This article also imposes a higher standard of care in managing and maintaining such former community property than the standard imposed during the marriage for managing community property. See LSA-C.C. art. 2354 (rev.1979). However, even that being the case, we see nothing in the article itself or the jurisprudence to suggest that this article now contemplates reimbursement for items occasioned by the use of the dwelling, as is claimed here, nor has Mr. Goines directed this court to any such authority for his position. Accordingly, we find no | inabuse of the trial court’s broad discretion in denying this claim, and we thus affirm the trial court’s ruling thereon.

No. 5. The trial court erred in denying Mr. Goines reimbursement for payments made on a computer loan.

Mr. Goines argues on appeal that “it is clear” that this debt (computer loan) was owed at the termination of the community, that the property (the computer) was community property, and that he paid the debt. The trial court found that the loan in question was for repairs made to the community computer after the termination of the community. The trial court disallowed this reimbursement, finding that Mr. Goines failed to prove that the repairs were necessary, failed to show that the repair costs were reasonable given that a new computer would cost less than the repairs, and further that Mr. Goines had exclusive use of the computer after the community’s termination.

The record shows that the parties stipulated that Mr. Goines paid “$1505.52. Debt paid on a computer that was a community piece of property, and he paid off the computer.” Further, the computer loan is listed on several of Mr. Goines’ descriptive lists. It is not described therein as a loan for repairs. At the August 2008 hearing, Mr. Goines testified about the computer loan. He did not testify that it was for repairs.

Accordingly, and especially given the parties’ stipulation, it appears the trial court concluded in error that the loan for $1505.52 was for computer repairs. Rather, it was for the community computer itself. The parties stipulated to the amount and that the loan originated during the community. There is no stipulation or evidence, however, regarding how much of the loan Mr. Goines paid after the community terminated. It is clear, however, that Mr. Goines had exclusive use of the computer, notwithstanding his argument that he was not awarded exclusive use |nof it. Accordingly, because Mr. Goines failed to present any evidence regarding how much of the loan was paid after the community terminated, and also because he had exclusive use of the computer, we find no abuse of the trial court’s discretion in disallowing reimbursement for payments on the computer loan to Mr. Goines.

No. 6. The trial court erred in its valuation of the community residence at 2322 Country Club Drive, LaPlace, Louisiana.

In his next assignment of error, Mr. Goines argues that the trial court erred in maintaining its previous valuation of the community residence located at 2322 Country Club Drive, LaPlace, Louisiana, at $212,000 based upon a 2005 appraisal report. Mr. Goines contends that the court rather should have adopted the $193,300 valuation of the residence given by his witness, real estate agent Ann Harvey, at the August 2008 hearing, given the “economy in general” and the downturn of the housing market in southeastern Louisiana.

Ms. Harvey was qualified as an expert in “real estate evaluation.” She testified that she was not an appraiser, but was a real estate agent with experience in selling homes in this geographic area. She used a computer program to determine her valuation, one that calculated a value using only the actual selling prices of homes in the immediate area divided by the square footage of those homes. She presented no specific evidence regarding the real estate market in LaPlace at the relevant point in time. Nor did her evaluation appear to consider and compare the individual features of this home and the “sold” homes, but rather was a mechanical application of a computer program.

| i2The trial court declined to disturb its earlier valuation of the community residence at $212,000, noting its broad discretion in this area. We find no abuse of the trial court’s discretion on this issue. In Katner v. Katner, 09-0974 (La.App. 4 Cir. 12/23/09), 28 So.3d 566, the trial court rejected a valuation of a home prepared by a realtor in favor of an appraisal prepared by a licensed real estate appraiser. Accordingly, we affirm the trial court’s valuation of the community home at $212,000.

No. 7. The trial court erred in denying Mr. Goines reimbursement for a computer repair expenses.

The only reference to computer repairs we find in the record is a carbon for a check Mr. Goines wrote for $32.61 for repairs to the computer hard drive. As noted above, however, because Mr. Goines had exclusive use of the computer, we find no abuse of the trial court’s discretion in disallowing reimbursement of computer repair costs to Mr. Goines.

No. 8. The trial court erred in denying Mr. Goines reimbursement for extermination costs for the community residence.

Mr. Goines argues next that the trial court erred in denying him reimbursement for extermination costs for the community residence after termination of the community.

In its reasons for judgment, the trial court found that Mr. Goines was “entitled to be reimbursed for ½ the cost of exterminator services, or $461.50.” The trial court’s judgment, however, does not specifically grant reimbursement to Mr. Goines for extermination costs he incurred for the community residence after termination of the community.

| i.oAt trial, Mr. Goines presented invoices in the amount of $923.00, representing what he paid for the termite contract and extermination services on the community home after the community terminated. He argues that these expenses were necessary for the preservation of the community home and hence are reimbursable. Mrs. Goines argues in brief that this reimbursement was properly denied under Jurgelsky v. Pinac, supra, presumably as expenses arising out of the Mr. Goines’ use of the home post community.

We find, as the trial court correctly reasoned but did not specifically rule (possibly inadvertently), that the termite extermination expenses were necessary to preserve the community home and its value, as much as the roof repairs were. Accordingly, Mr. Goines is entitled to reimbursement for one-half of these expenses, or $461.50.

No. 9. The trial court erred in denying Mr. Goines’ request for reimbursement of his payment of Mrs. Goines’ separate debts of $2,738 for her trailer, $294 for insurance thereon, and $1,618.61 paid to River Parishes, considering admissions of Mrs. Goines.

The trial court’s judgment denied Mr. Goines’ claims for reimbursement of his payment of Mrs. Goines’ separate debts of $2,738 for her trailer, $294 for insurance thereon, and $1,618.61 paid to River Parishes, finding that Mr. Goines did not establish at trial if or when the trailer was purchased and for what purpose. However, we find that Mrs. Goines, in her testimony on October 8, 2008, stated that she brought the trailer prior to the marriage, and that the trailer debt of $2,738 was taken directly out of her paycheck during the marriage, thus paying off the trailer. She also testified that $294 in insurance on the trailer was paid during the marriage until the debt was retired. We find that this evidence establishes that Mrs. Goines’ separate debts (the trailer loan and the trailer insurance) were paid 114during the community with community funds, and therefore Mr. Goines is entitled to reimbursement for one-half of these amounts. Accordingly, the trial court’s judgment in this regard is reversed.

Furthermore, Mr. Goines argues in brief that Mrs. Goines admitted, in her answers to his requests for admissions, that her separate debt to River Parishes of $1,618.61 was paid with community funds. The judgment fails to address this claim, and thus it was tacitly denied. Our review of the record shows that, contrary to Mr. Goines’ assertion in his appellate brief, Mrs. Goines admitted that a debt to River Parishes in this amount was in fact paid during the community, but she specifically denied that it was her separate debt. Accordingly, we have no reason to disturb the trial court’s denial of this claim.

No. 10. The trial court erred in failing to allocate the community home located at 2232 Country Club Drive, La-Place, Louisiana, to Mr. Goines.

In his tenth assignment of error, Mr. Goines argues that the trial court erred when it failed to allocate the community home to Mr. Goines. The judgment on appeal, as amended, fails, in fact, to allocate the community home to either party. LSA-R.S. 9:2801(A)(4)(c) states that the trial court “shall allocate or assign to the respective spouses all of the community assets and liabilities.” Previously in this litigation, as noted above, the trial court declared the community home to be the separate property of Mr. Goines. This court reversed, finding that the home was community property. Because neither party appealed this judgment further, it is now final. This court’s judgment did not, however, allocate the home to either party, nor did the trial court allocate the home in the judgment now on appeal.

The trial court erred, therefore, in rendering a judgment partitioning the community without specifically allocating the community home to one of the | ^parties, or, in the alternative, disposing of the community home as per paragraphs (e) or (f) of LSA-R.S. 9:2801(A)(4), supra. Because the home is the most significant of the parties’ assets, as noted by the trial court in the April 19, 2009 judgment, the partition is incomplete, and the matter must be remanded for disposition of the community home as per LSA-R.S. 9:2801(A)(4).

This court further finds that the trial court did not follow the procedures mandated by LSA-R.S. 9:2801(A)(4) because its judgment did not assign value to all of the assets or liabilities, divide the assets and liabilities, and determine if an equalizing payment was required due to an unequal distribution. Accordingly, it is necessary to remand the case for completion of the partition proceedings, as this court has insufficient evidence before it to do so. See Goutierrez v. Goutierrez, 09-1360 (La.App. 3 Cir. 4/7/10), 34 So.3d 1058.

No. 11. The trial court erred in designation of debt other than the home mortgage and auto loans.

In his last assignment of error, Mr. Goines argues that since Mrs. Goines listed only the auto loans and home mortgage as community debts on her list of assets filed in December of 2003, this is an admission that these were the only community debts, and thus characterization of any other debts as community in nature is “wrong.” But Mr. Goines fails to brief this item more specifically, or otherwise request specific relief from this court from the trial court’s judgment. He fails to identify herein what particular debts he believes the trial court mischaracterized. As such, this assignment of error presents this court with nothing to review, and thus no relief is warranted.

Mr. Goines also argues in brief that this court should declare that any obligation incurred by Mrs. Goines post termination of the community should be 11fideclared her separate and sole obligation, particularly the obligation to pay “$30,000.00” [sic] to River Parishes that she incurred in 2002 after the termination of the community. We find that the trial court properly addressed this issue in a previous judgment in this proceeding rendered on March 27, 2007. There, the trial court found that a $3,000.00 loan made by River Parishes to Mrs. Goines in April of 2002 was her separate obligation.

MRS. GOINES’ASSIGNMENTS OF ERROR

Mrs. Goines’ assignments of error pertain particularly to the community home.

No. 1. The trial court erred in not requiring Mr. Goines to reimburse the community for the payment of the separate debt of $107,268.15 with community funds when the house was made community and that amount was borrowed with use of the community house as collateral to pay a separate debt of Mr. Goines.

In her first assignment of error, Mrs. Goines argues that the district court erred in not requiring Mr. Goines to reimburse the community for the payment of the separate debt of $107,268.15 with community funds when that amount borrowed and used to pay a separate debt of Mr. Goines.

Specifically, as noted above, Mr. Goines purchased the home on Country Club Drive on August 31, 1985 prior to the parties’ marriage. When they married on June 20, 1986, they lived in the home, which was still Mr. Goines’ separate property. The mortgage payments were made with community funds. On March 30, 1988, Mr. Goines transformed his separate home to community property, and the parties then refinanced the home, taking a new loan and mortgage in the stipulated amount of $107,628.15, and in the process paid off the previous loan and mortgage that Mr. Goines had taken when he purchased the house in 1985. The |17parties lived in the community home until they separated. The community terminated on August 7, 2000, approximately twelve years after the home became community property.

Mrs. Goines argues that community funds (the new loan made in April of 1988) were used to pay the separate debt of Mr. Goines (Mr. Goines’ prior loan and mortgage), for which he now owes her reimbursement. She cites the following in support of her position: LSA-C.C. art. 2364, Cook v. Cook, 457 So.2d 235 (La.1984), and Sequeira v. Sequeira, 04-433 (La.App. 5 Cir. 11/30/04), 888 So.2d 1097.

We find that the cases cited by Mrs. Goines do not support her position, nor do they address the specific factual scenario before this court. Both of these cases concern the payment of a credit card account, not the donation of a separate home to the community and the subsequent refinancing of the mortgage on that home as a community obligation.

We find that the refinancing of the home in April of 1988, immediately after it became community property, was equivalent to the community purchasing the home from Mr. Goines for the balance owed thereon. This is not a case of separate property being used for the acquisition of community property. It is similar to separate property of one spouse being acquired by the community through purchase. Mr. Goines’ separate obligation, the old mortgage, was paid off by the refinancing. The community now owned the home and was liable on the new mortgage. Because he was part of the community, Mr. Goines was liable on the new mortgage as well. Mrs. Goines, as part of the community, likewise received an undivided one-half ownership interest in and to the home, a very significant | isasset, and personal use and benefit of the home when it became community property, and lived in the home approximately twelve years (from 1988 until 2000), but was likewise was also liable on the mortgage as part of the community. The home, as noted by the trial court, was the parties’ most significant asset, and the payment of the new mortgage loan cannot be compared to one spouse paying off a separate credit card account with community funds as argued by Mrs. Goines in the cases she cites in her brief.

Under the factual scenario presented here, we find no support for Mrs. Goines’ argument that she is entitled to reimbursement for one-half of the mortgage amount originated in 1988 when the community acquired the home from Mr. Goines and refinanced the home. We find no abuse of the trial court’s discretion in denying this claim.

No. 2. The district court was in error in ruling that the payment of the mortgage on the community house, taxes paid, and flood and homeowners insurance after the divorce should be reimbursed to Mr. Goines.

Mrs. Goines argues that the trial court erred in ordering her to reimburse Mr. Goines for one-half of the mortgage payments, tax payments, and insurance payments he made on the community home after the termination of the community, because he had exclusive use of the home after 2000 and paid her no rent. The trial court found that Mr. Goines is entitled to reimbursement of these expenses under LSA-C.C. 2369.3, reasoning that payment of the mortgage was within the scope of that article’s charge of prudent property management and that Mr. Goines’ actions in this regard protected the value of the parties’ most significant community asset. The court also reasoned that Mrs. Goines had availed herself of her status as a co-owner when she granted the mortgage on the house to River Parishes in 2002, even though she no longer lived there and was paying |19nothing towards the mortgage and expenses on the home for which she was legally responsible.

We see no abuse of the trial court’s discretion in this ruling. Accordingly, this ruling is affirmed.

Nos. 3 and 4. The district court was in error in awarding Mr. Goines all mortgage payments paid by him on his separate house with his separate funds prior to the marriage to Mrs. Goines, and in awarding Mr. Goines the $6,000 down payment on his separate house he purchased with his separate funds prior to the marriage.

Mrs. Goines next argues that the trial court erred in awarding Mr. Goines “reimbursement for one-half of all the mortgage payments he made on the house, prior to 1988, from his separate property” and for one-half of the down payment he made on the house in 1985. She points out that no specific amount was awarded and no basis for the award was cited.

We find that these awards to Mr. Goines are not supported by the law and were an abuse of the trial court’s discretion. The record shows that prior to the community’s termination in 2000, the only mortgage payments Mr. Goines made on the house from his separate property were made when the home was in fact his separate property, from when he purchased the home in 1985 until he married Mrs. Goines on June 20, 1986. Payments on the mortgage after the marriage were made with community funds, as the trial court correctly noted. There is no support in the law, specifically LSA-C.C. art. 2867 as cited by the trial court, for ordering Mrs. Goines to reimburse Mr. Goines for mortgage payments made on his separate property with his separate funds prior to the marriage, notwithstanding the fact that the home later became community property. Likewise, reimbursement to Mr, |2nGoines for the down payment made by him with his separate funds prior to the marriage to acquire separate property is similarly not supported in the law, notwithstanding the fact that he later chose to transform the home to community property. Furthermore and importantly, by transforming the house from separate property to community property without any reservations or conditions, Mr. Goines has in effect waived and released any such reimbursement claims he may have had and accordingly is estopped from now asserting them. For these reasons, these reimbursement awards to Mr. Goines are reversed.

CONCLUSION

The judgment on appeal is affirmed in part and reversed in part as noted above. The matter is remanded to the trial court for disposition of the community house and completion of the partition proceeding as per LSA-R.S. 9:2801. Each party is to bear their own costs of this appeal.

AFFIRMED IN PART, REVERSED IN PART; REMANDED.

      . LSA-C.C. art. 2369.3 provides, in pertinent part, as follows:
      A spouse has a duty to preserve and to manage prudently former community property under his control, including a former community enterprise, in a manner consistent with the mode of use of that property immediately prior to termination of the community regime. He is answerable for any damage caused by his fault, default, or neglect.

      . LSA-C.C. art. 2369.4 provides as follows:
      A spouse may not alienate, encumber, or lease former community property or his undivided community interest in that property without the concurrence of the other spouse, except as provided in the following Articles. In the absence of such concurrence, the alienation, encumbrance, or lease is a relative nullity.

      . LSA-C.C.P. art. 856 provides as follows:
      In pleading fraud or mistake, the circumstances constituting fraud or mistake shall be alleged with particularity. Malice, intent, knowledge, and other condition of mind of a person may be alleged generally.

      . LSA-C.C. art. 2354 provides as follows:
      A spouse is liable for any loss or damage caused by fraud or bad faith in the management of the community property.

      . Paragraph 4 of Mr. Goines’ Motion for Judicial Partition of Community Property alleged the following: The defendant, Dianne B. Goines, has damaged the community due to her mismanagement of community property.

      . LSA-C.C. art. 806 provides as follows:
      A co-owner who on account of the thing held in indivisión has incurred necessary expenses, expenses for ordinary maintenance and repairs, or necessary management expenses paid to a third person, is entitled to reimbursement from the other co-owners in proportion to their shares.
      If the co-owner who incurred the expenses had the enjoyment of the thing held in indivision, his reimbursement shall be reduced in proportion to the value of the enjoyment.

      . Sims v. Sims, 358 So.2d 919 (La. 1978).

      . The trial court’s order dated June 2, 2009 provides as follows: The parties are ordered to address the calculation and distribution of the retirement accounts pursuant to the Sims formula.

      . In Sims, supra, the Supreme Court affirmed a divorced wife’s right to receive benefits from her husband's government pension plan in the proportion that they were attributable to the husband’s employment during the community. The husband was still employed but the divorced wife was entitled to have her interest recognized prior to the funds becoming payable to the employee.

      . As noted above, in a previous judgment in this proceeding signed on May 31, 2007, the trial court ruled that the home was Mr. Goines’ separate property and also valued the home at $212,000. This court reversed, finding that the home was community property. This court did not, however, address the valuation part of the trial court’s judgment.

      . It should be noted that the trial court’s judgment of April 21, 2009 denied Mr. Goines reimbursement for "roof repairs, patio repair, duct installation, and various household products.” Further, since the trial court’s judgment does not specifically grant reimbursement to Mr. Goines for extermination costs he incurred for the community residence after termination of the community, this claim was tacitly denied by the trial court in one of the last items in the judgment, wherein the trial court stated: IT IS FURTHER ORDERED, ADJUDGED AND DECREED that any other claims that were taken under advisement that were not specifically addressed herein are DENIED.

      . See footnote 11.

      . Further, as noted above, the trial court found in its March 27, 2007 judgment that there were more community debts than those listed in Mrs. Goines' 2003 descriptive list.

      . LSA-C.C. 2364 provides as follows: If community property has been used during the existence of the community property regime or former community property has been used thereafter to satisfy a separate obligation of a spouse, the other spouse is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used.

      . LSA-C.C. 2367 provides in pertinent part as follows: If separate property of a spouse has been used during the existence of the community property regime for the acquisition, use, improvement, or benefit of community property, that spouse is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used. The liability of the spouse who owes reimbursement is limited to the value of his share of all community property after deduction of all community obligations.


source: Caselaw Access Project

author: CLARENCE E. McMANUS, Judge. WICKER, J.

license: Public Domain

text:
    Patricia BOUDREAU v. Ryan BOUDREAU.
    No. 10-CA-347.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 9, 2011.

      Bennett Wolff, Wolff & Wolff, Attorney at Law, Metairie, LA, for Plaintiff/Appellant.
    Laura J. Todaro, Neil D.W. Montgomery, Attorneys at Law, Kenner, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER and MARC E. JOHNSON.
   CLARENCE E. McMANUS, Judge.

|⅞⅛1 this divorce proceeding, plaintiff appeals a ruling of the trial court which assesses to her the cost of an expert witness’s fee. We reverse the decision of the trial court.

Patricia Boudreau and Ryan Boudreau were married on February 7, 2004. The parties had one child, born November 9, 2004. On October 20, 2008, Patricia filed a petition for divorce.

On November 24, 2008, the trial court rendered an interim judgment based on the recommendations of the hearing officer granting (among other things) joint custody of the minor child, with Patricia as the domiciliary parent and Ryan having unsupervised visitation. On February 18, 2009, the court modified its judgment to provide that Ryan’s visitation be supervised by the paternal grandparents. The parties were granted a divorce by judgment signed on August 11, 2009.

Patricia objected to the hearing officer’s recommendations and the interim custody and on September 30, 2009, the trial court considered her objection.

|3The court rendered judgment granting supervised visitation to Ryan. In the judgment, Patricia was ordered to pay the witness fees of Ms. Stacy Horn-Koch and Ms. Lorey Delap. After the trial court denied Patricia’s Motion for New Trial, she filed this appeal. The record was designated on appeal, and only the transcript of the court’s oral reasons was requested. Therefore the transcript of the hearing, including the testimony of Ms. Delap, is not present.

In this appeal, Patricia contends that the trial court erred in ordering her to pay the expert fee of Ryan’s therapist, Ms. Lorey Delap. She contends that she should not be ordered to pay since Ms. Delap was never qualified and tendered as an expert by either party.

Witnesses called to testify as expert witnesses shall be compensated for their services. LSA-R.S. 18:3666; Orea v. Scallan, 82,622 (La.App. 2 Cir. 1/26/00), 750 So.2d 483. An expert witness need not answer hypothetical questions in stating opinions and conclusions, but even an expert is not entitled to a fee if he merely gives testimony as to facts and circumstances which could be stated by a lay witness. Welton v. Falcon, 341 So.2d 564 (La.App. 4 Cir.1976), writ denied 342 So.2d 872, 1109 (La.1977). See also, D’Angelo v. New Orleans Public Service, Inc., 405 So.2d 1262 (La.App. 4 Cir.1981), writ denied, 407 So.2d 748 (La.1981).

Ms. Delap is Ryan’s therapist. Patricia subpoenaed her to testify at trial. It is undisputed that neither party qualified Ms. Delap as an expert. In brief, Patricia argues that Delap was called as a lay person, and as a fact witness to testify as to what transpired during therapy sessions. Patricia’s assertion that she did not intend to call Mr. Delap as an expert, and in fact did not call Ms. Delap as an expert, is bolstered in the record. The record reflects that Ms. Delap called the court’s chambers on the date before trial to complain that when she was subpoenaed, she | requested payment, but did not receive it. The court stated that his law clerk informed Ms. Delap that if she was subpoenaed, she had to appear in court.

In support of her contention that Ms. Delap is not entitled to expert fees because she was not qualified as an expert prior to giving her testimony, Patricia cites the cases of Hebert v. Diamond M. Company, 385 So.2d 410 (La.App. 3 Cir.1980) (the court of appeal vacated an aware of attorney fees where, not only were the witnesses not qualified as experts, they offered no expert testimony on any aspect of the case) and Dorsett v. Johnson, 34,500 (La.App. 2 Cir. 5/9/2001), 786 So.2d 897 (the witness was not qualified as an expert. The nature of his testimony was not discussed in the opinion).

In this case, Ms. Delap was not offered as an expert witness. The nature of her testimony is unknown; however, the minute entry of trial reflects that there was no objection made to any questioning on the grounds that the witness was not tendered as an expert. We find that under the facts of this case, the trial court erred in awarding expert fees to Ms. Delap.

In his brief, Ryan also requests that portions of the Patricia’s brief be stricken, alleging that it contains statements that are irrelevant to the appeal and were included solely to embarrass, criticize and harass him, citing Uniform Rules of Court, Courts of Appeal, Rule 2-12.4.

The statements to which Ryan objected may not have been appropriate to the appeal before us; however they were not of such nature to require that brief be stricken or that sanctions be imposed. Jarman v. Jarman, 540 So.2d 444 (La.App. 1 Cir. 1989). Furthermore, this Court disregarded the statements complained of in deciding the issue presently before us. Bethea v. Modem Biomedical Services, Inc., 97-332 (La.App. 3 Cir. 11/19/97), 704 So.2d 1227, writ denied, 97-3169, 97-3170 (La.2/13/98), 709 So.2d 760, 761.

|sRyan filed an answer in this Court alleging that the trial court erred in failing to adopt the recommendations of evaluator. However, Ryan did not brief his issues to this Court and therefore they are considered abandoned. Uniform Rules-Courts of Appeal, Rule 2-12.4; Decker v. Cox Communications Louisiana, LLC, 09-655 (La.App. 3 Cir. 12/16/09), 27 So.3d 998, writ denied, 10-0100 (La.4/5/10), 31 So.3d 365; Aguilar v. Transit Management of Southeast Louisiana, Inc., 04-1027 (La.App. 5 Cir. 3/1/05), 900 So.2d 65.

For the above discussed reasons, the judgment of the trial court is reversed. The request to strike is denied. All costs are assessed against Ryan Boudreau.

WICKER, J., dissents with reasons.

WICKER, J.

dissents with reasons.

hi respectfully dissent for the following reasons.

In this case, Mrs. Boudreau subpoenaed Ms. Delap — her ex-husband’s therapist— to testify at the custody hearing. When Ms. Delap testified neither party tendered her as an expert nor was she formally accepted as an expert witness. Nevertheless, at the conclusion of the trial, Mrs. Boudreau was ordered to pay the cost of Ms. Delap’s expert testimony.

A seminal question not previously answered by this Court is whether expert witness fees can be awarded to a witness who was not tendered, qualified, and accepted as an expert.

A trial judge enjoys great discretion under La. C.C.P. art. 1920 in the taxing of expert witness fees. Buffman Inc. v. Lafayette Co., 09-0870, 09-1241 p. 39 (La. App. 4 Cir. 4/14/10), 36 So.3d 1004, 1030. On the trial court’s award of expert witness fees and court costs, “[t]he standard of review for this Court is whether there was an abuse of discretion by the district court.” Id. at 1029 citing Saden v. Kirby, 01-2253, p. 1 (La.App. 4 Cir. 8/7/02), 826 So.2d 558, 560; Mossy Motors v. Water Board of the City of New Orleans, 01-0486, p. 5 (La.App. 4 Cir. 9/19/01), 797 So.2d 133,137.

While the first and second circuits hold that the witness must be qualified and tendered as an expert in order to be entitled to an expert |2witness fee, the third and fourth circuits find no such formal requirement exists.

In Wallace v. State Farm Fire & Cas. Ins. Co., 345 So.2d 1004, 1009 (La.App. 2 Cir.1977), the court declined to order expert witness fees for witnesses who were not qualified by the trial court as experts. Likewise, in Hebert v. Diamond M. Co., 385 So.2d 410, 415 (La.App. 1 Cir.1980), the court found that the trial court erred in awarding expert fees to persons who were not qualified by the trial court as experts.

Conversely, in Darbonne v. Wal-Mart Stores, Inc., 00-551 p. 8 (La.App. 3 Cir. 11/2/00), 774 So.2d 1022, 1028, the court held “there is no formal requirement that a party formally tender an expert witness or that a court formally declare that a witness is accepted as an expert.” That court stated, “the fact that the trial court accepted the testimony of Mr. Nelson as an expert without expressly stating so did not constitute error.” Id. Likewise, in Square Deal Siding Co., Inc. v. Thaller, 08-0757 p. 8 (La.App. 4 Cir. 12/30/08), 3 So.3d 71, 78, the court held there was no requirement that a witness be tendered and formally declared to be an expert.

I agree with the position taken by the third and fourth circuits. In my view, where a witness renders expert opinion testimony without objection, that witness may seek remuneration by way of an expert witness fee whether or not that witness has been formally qualified and tendered as an expert.

The next question then is whether the trial court abused its discretion when it found that the witness had given expert opinion testimony and awarded an expert witness fee on that basis. Here, the appellant did not designate Ms. Delap’s testimony as part of the appellate record. Without the transcript to review, I would find that the appellant has failed to prove that the trial court abused its discretion in awarding the expert witness fee.

| RIn his oral reasons for judgment, the trial court judge stated that Ms. Delap called his office the day before trial and complained to his law clerk that she would not be paid for her services. While I condone neither the witness’ action in calling the court to air her complaint rather than filing a motion for expert fees, nor the court’s action in having a conversation with the witness without counsel for both parties being present, the trial court stated on the record:

Mr. Wolff did not qualify her [Ms. De-lap] as an expert. However, she was answered, she was treated as an expert. There was no objection by Mr. Cashi, but that doesn’t mean, the mere fact the he didn’t object and say she hasn’t been qualified first, that doesn’t mean that she wasn’t asked opinion questions that drew on her expertise. She clearly was. In closing arguments, Mr. Wolff referred to her diagnosis, for instance, of alcohol abuse. All of that indicates expertise, so I’m only bringing this up to head off what I know is an — which I feel is probably an eventual issue, and that is whether she should be paid as an expert or not. And I feel that she was because she was questioned as an expert and as Mr. Wolff said, she was asked about a, as he characterized it, a diagnosis.

“The trial court is vested with much discretion in determining which opinion testimony shall be received into evidence and whether it will be received as “lay” or “expert” testimony.” Square Deal Siding, supra at 79. Deferring to the trial judge’s discretion, the trial judge was in the best position to determine whether Ms. Delap displayed expertise on the matter to which she testified. Based on the reasons he expressed in open court, the trial judge was of the opinion she did.

Therefore, on the record before us, I cannot find that the trial court abused its discretion in finding that Ms. Delap was an expert despite the fact that she was never tendered as such. I would affirm.

[ 4ROTHSCHILD, J. dissents for the reasons assigned by Judge WICKER.


author: SUSAN M. CHEHARDY, Judge.

text:
    JSB INTERESTS, LLC v. The HANOVER INSURANCE COMPANY, Eagan Insurance Agency, Inc., Marcus Eagan, and ABC Insurance Company.
    No. 10-CA-487.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 9, 2011.
    Rehearing Denied April 27, 2011.

      Stephen C. Aertker, Jr., Thomas H. Hu-val, Christian A. Shofstahl, Stefini W. Salles, Attorneys at Law, Covington, LA, for Plaintiff/Appellant, JSB Interests, Inc.
    Max J. Cohen, Melanie Lockett, Attorneys at Law, New Orleans, LA, for Defendants/Appellees, Eagan Insurance Agency, Inc., Marcus Eagan, and Westport Insurance Corporation.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   SUSAN M. CHEHARDY, Judge.

12This is an insurance lawsuit arising out of Hurricane Katrina damage. The plaintiff appeals a summary judgment in favor of several of the defendants. We affirm.

PROCEEDINGS IN TRIAL COURT

JSB Interests, Inc. (“JSB”) filed suit in August 2006 against Eagan Insurance Agency, Inc. (“EIA”), Marcus Eagan, the Hanover Insurance Company (“Hanover”), and Westport Insurance Company (“West-port”) as errors and omissions insurer of EIA and Marcus Eagan.

The petition makes the following allegations: Prior to August 29, 2005, JSB obtained an insurance policy from Hanover, through EIA and Marcus Eagan, to cover personal and immovable property in its building at 2 Commerce Court in Harahan, Louisiana. JSB requested “full insurance coverage,” and EIA and Marcus Eagan represented to JSB that the policy provided full coverage for any loss or damage to the property, with no gaps in coverage or exclusions for JSB’s property. In addition, the policy incorporated “Additional Property Coverage and Extensions — Bu-sinessowners Declarations,” which JSB believed evidenced that the policy provided full coverage for any loss or damage to personal property owned by JSB, up to the policy limit of $500,000.

|sThe petition alleges further that JSB sustained significant damage to its personal property and immovable property due to Hurricane Katrina. After the hurrieane, Marcus Eagan reviewed the policy with representatives of JSB and reaffirmed that the policy provided coverage for personal property. He specifically stated that such coverage was included under the declaration mentioned above. Hanover’s communications with JSB after Hurricane Katrina also indicated that the policy provided coverage for personal property. When JSB submitted its claim to Hanover, however, Hanover advised it was denying coverage for any damage to JSB’s personal property because the policy covers only the building at # 2 Commerce Court, not personal property of JSB located in or on those premises.

As against Hanover, JSB alleged breach of duty to fully inform JSB of coverage options, negligent misrepresentation regarding the scope and nature of the policy, breach of implied warranty regarding coverage under the policy, failure to fairly and promptly adjust the claim and timely pay the insurance benefits due under the policy; breach of its duty of good faith and fair dealing, failure to initiate loss adjustment within 30 days after notification of loss, and breach of its statutory obligations under La. R.S. 22:658 and 22:1220.

Alternatively, in the event the court determines that JSB’s personal property was not covered by Hanover’s policy, JSB asserted that EIA, Marcus Eagan, and their errors and omissions insurer are liable to JSB for breach of their duties to fully and fairly inform JSB of its coverage options; negligent misrepresentation regarding the scope and nature of the Hanover policy; and breach of their express and implied warranties regarding the coverage of Hanover’s policy.

|4In the further alternative, JSB asserted that EIA and Marcus Eagan were acting at all pertinent times as agent of Hanover in the sale of insurance policies and Hanover is therefore estopped from asserting a meaning of its policy coverage different from that communicated by EIA and Marcus Eagan to JSB.

All defendants filed answers denying the allegations, referring to the Hanover insurance policy itself as the best evidence, and raising affirmative defenses.

In addition, EIA, Marcus Eagan, and Westport (hereafter collectively “the Ea-gan Defendants”) filed a motion for summary judgment, asserting they are entitled to judgment because JSB did not request coverage for the building contents, the movers did not owe a duty to advise JSB to procure contents coverage, JSB could not establish it relied on any statements made by EIA and Eagan, and JSB could not establish that EIA and Eagan warranted or promised any result or failed to perform any work. The Eagan Defendants further asserted that JSB’s claims for negligent misrepresentation must fail because JSB cannot establish justifiable reliance on their agent’s alleged misrepresentations, because an insured is responsible for reading his policy and is presumed to know its terms.

In support of the motion, the Eagan Defendants filed copies of written correspondence between Eagan representatives and Edward Q. Castle, regarding insurance quotes for the building at 2 Commerce Court in Harahan. Castle was Human Resources Manage for Barrister Global Services Network, Inc., which was to lease the building from JSB. Also attached was an Application for Commercial Insurance for building coverage, which did not request business personal property coverage; and an insurance policy declarations page that indicates coverage for business personal property in the amount of “$0.”

|fiIn opposition to the motion for summary judgment, JSB filed the affidavit of John S. Bowers, III, sole member/manager of JSB. (JSB could not produce an affidavit from Ed Castle because Castle died prior to the litigation.)

In the affidavit, Bowers averred that JSB purchased the building at 2 Commerce Court on August 30, 2004, and leased the property to Barristers Global Services Network, Inc. Bowers said that at all pertinent times, the business personal property of JSB was located in the building at 2 Commerce Court. Bowers stated that Marcus Eagan contacted him in 2004 about selling insurance products to Bowers and/or his affiliated businesses. Bowers said he and Ed Castle, who was manager of human resources and special projects for JSB, discussed the business needs of JSB with Marcus Eagan. The affidavit states Bowers and Castle informed Eagan of JSB’s need for full coverage without gaps for contents or business personal property, and expressly requested that any policy procured by Eagan include such coverage.

Bowers stated further that he personally had conversations with Marcus Eagan in which Marcus Eagan represented that the policy provided full coverage for any loss to business personal property owned by JSB, and that after Hurricane Katrina Marcus Eagan told him that coverage for the business personal property at issue falls under “Additional Property Coverages and Extensions.” Bowers further averred that in September 2005, he met with Marcus Eagan to discuss the Hanover policy and to prepare for meeting with representatives of the Hanover regarding JSB’s claim for damage caused by Hurricane Katrina. At that meeting, Bowers stated, Marcus Eagan stated that the Hanover policy provided coverage for JSB’s business personal property, and Eagan highlighted various provisions of the Hanover policy evidencing such coverage.

| ^Bowers also said that he did not receive a copy of the Hanover policy prior to Hurricane Katrina, and that he did not receive the letter purportedly issued on September 21, 2004, which the Eagan Defendants claimed showed when the policy was delivered to JSB, until this litigation in 2008. Bowers said that prior to receipt of an e-mail message from a Hanover employee in November 2005 stating that Hanover insured only the building, not business personal property, neither he nor any other person employed by or affiliated with JSB had knowledge of Hanover’s contention that its policy provided coverage only for the building.

Bowers’ affidavit stated further that after he received the November 2005 message from the Hanover employee, he confronted Marcus Eagan regarding Hanover’s refusal to pay for damage other than to immovable property. According to Bowers, Marcus Eagan represented to Bowers and another JSB employee, Byron Cain, that the Hanover policy did provide coverage for JSB’s personal property and that he would support JSB’s position regarding such coverage.

Bowers averred that despite Hanover’s assertion that its policy did not cover personal property, at the same time Hanover was requesting that JSB provide proof of ownership for the items claimed as hurricane losses. Bowers stated that based on representations by Marcus Eagan, among other things, until November 29, 2005 JSB had no reason to believe that the Hanover policy did not provide coverage — or that Hanover would deny coverage — for business personal property.

After hearing argument of counsel, the court took the motion under advisement. The trial court subsequently granted summary judgment without giving reasons for the ruling.

JSB appeals. It argues there is a genuine issue of material fact as to whether JSB instructed EIA and Eagan to procure insurance covering JSB’s business personal property. JSB submitted affidavits in opposition to the motion for |7summary judgment, but exhibits attached to the motion for summary judgment directly contradict JSB’s affidavits. Hence, JSB argues, there is a genuine issue of material fact and summary judgment is not appropriate.

The Eagan defendants contend the affidavit by JSB’s principal officer does not raise a genuine issue of material fact, because it is self-serving and not based on his personal knowledge. It offers his version of what went on between the now-deceased employee in charge of obtaining coverage and the insurance agency, although the affiant was not present at such meetings/conversations and does not have direct knowledge.

LAW AND ANALYSIS

Summary judgment is appropriate when the pleadings, depositions, and affidavits show there is no genuine issue as to any material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966.

In King v. Illinois Nat Ins. Co., 2008-1491, p. 6 (La.4/3/09), 9 So.3d 780, 784, our supreme court summarized summary judgment law as follows:

Appellate review of the granting of a motion for summary judgment is de novo, using the identical criteria that govern the trial court’s consideration of whether summary judgment is appropriate. A motion for summary judgment is a procedural device used when there is no genuine issue of material fact. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and shall be construed to favorably accomplish these ends. A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial |Ron that issue and summary judgment is appropriate. [Citations omitted.]
This Court recently reiterated,
Summary judgments are now favored in the law and the rules should be liberally applied.
The mover bears the burden of proof; however, the mover need only 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....” Once the mover has made a prima facie showing that the motion shall be granted, the burden shifts to the adverse party to present evidence demonstrating that material factual issues remain. [Citations omitted.]

Alexander v. Parish of St. John the Baptist, 09-840, pp. 6-7 (La.App. 5 Cir. 3/23/10), 33 So.3d 999, 1003-1004, writ denied, 2010-1289 (La.9/17/10), 45 So.3d 1056.

Our decision turns on whether the affidavit of John S. Bowers, III, raises one or more genuine issues of material fact. The Eagan Defendants assert that JSB’s claims of breached express and implied warranties must fail because JSB failed to allege the existence of a warranty.

An insurance agent who undertakes to procure insurance for another owes an obligation to his client to use reasonable diligence in attempting to place the insurance requested and to notify the client promptly if he has failed to obtain the requested insurance. The client may recover from the agent the loss he sustains as a result of the agent’s failure to procure the desired coverage if the actions of the agent warranted an assumption by the client that he was properly insured in the amount of the desired coverage.

Roger v. Dufrene, 613 So.2d 947, 948 (La. 1993), quoting Karam v. St. Paul Fire & Marine Insurance Co., 281 So.2d 728, 730-731 (La.1973).

19We agree with the Eagan Defendants that the Bowers affidavit does not raise genuine issues of material fact, either as to what representations were made by Marcus Eagan, or as to whether and when JSB received a copy of the insurance policy.

Bowers’ affidavit conflicts with the exhibits offered by the Eagan Defendants on the salient points of what was discussed with Marcus Eagan regarding coverage of business personal property, and when JSB should be considered to have had notice that the Hanover policy did not cover business personal property. Bowers’ affidavit, however, is not based on personal knowledge. It states what purportedly transpired in communication between the deceased Ed Castle and Eagan’s representatives. Ed Castle alone made the final request for insurance coverage on behalf of JSB. Bowers was not present and has no personal knowledge regarding the request made during the meeting between Ed Castle and Marcus Eagan.

In addition, Eagan’s exhibits in support of the motion for summary judgment included Ed Castle’s written request for building coverage; a signed Application for Commercial Insurance for building coverage, devoid of any request for business personal property coverage; and an insurance policy that clearly indicates coverage for business personal property in the amount of “$0.00.”

Further, Eagan did not owe a duty to advise JSB to procure business personal property coverage. Eagan’s duty to procure the insurance coverage requested by JSB did not include a duty to spontaneously identify JSB’s needs and advise it regarding additional coverage.

“In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact.” Jones v. Gray Ins. Co., 07-650, p. 6 (La.App. 5 Cir. 2/6/08), 980 So.2d 1, 4. “It is not the function of the trial court on a motion for summary judgment to determine or even inquire into the merits of the issues raised, for the weighing of conflicting evidence has no place in summary judgment procedure.” ACMG of Louisiana, Inc. v. Jones, 35, 102, p. 7 (La. App. 2 Cir. 9/26/01), 796 So.2d 704, 708, writ denied, 2001-2869 (La.1/11/02), 807 So.2d 240.

DECREE

For the foregoing reasons, we affirm the summary judgment. Costs of this appeal are assessed against the appellant, JSB Interests, LLC.

AFFIRMED

      . The business personal property for which JSB seeks payment includes an 18-foot-long conference table valued in excess of $100,000, as well as cabinets, desks, bookshelves, credenzas, filing cabinets, chairs, computers, printers, and related office equipment.

      . JSB filed Bowers’ affidavit in connection with a peremptory exception of peremption made by EIA, Marcus Eagan, and Westport that the trial court referred to the merits. JSB re-used the affidavit in connection with its opposition to the motion for summary judgment. In addition, our review of the record for summary judgment purposes allows us to consider all "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits” that were filed during the entire course of the litigation, as provided by La. C.C.P. art. 966.


text:
    Gale NIONS and Sharon N. Payton v. Iris S. RICHARDSON, State Farm Mutual Automobile Insurance Company, Frederick K. Tobias and USAgencies Casualty Insurance Company, Inc.
    No. 10-CA-610.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 9, 2011.

      Ford T. Hardy, Jr., Attorney at Law, New Orleans, LA, for Appellant, Gail Nions and Sharon Payton.
    Scott A. Cannon, Attorney at Law, Sli-dell, LA, for Appellee, USAgencies Casualty Insurance Company.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   SUSAN M. CHEHARDY, Judge.

^Appellants, Gail Nions and Sharon Payton, appeal the summary judgment in favor of appellee, USAgencies Casualty Insurance Company (“USAgencies”). For the following reasons, we affirm.

On July 20, 2008, appellants were traveling on U.S. Highway 90B in Jefferson Parish in Ms. Nions’ vehicle when another car, which was owned and driven by defendant, Frederick Tobias, struck the vehicle. Appellants filed suit against Tobias and his insurer, USAgencies, among others who are not relevant to this appeal. Although USAgencies admitted that it had issued a policy of automobile insurance to Tobias, the company averred that the policy was cancelled before the accident.

On November 24, 2009, USAgencies filed a Motion for Summary Judgment with attachments, contending that it was entitled to judgment as a matter of law on the issue of coverage because it had can-celled Tobias’ policy before the accident. USAgencies submitted six exhibits attached to its Motion, including: (1) a copy of the Declarations page, which was processed “5/19/08 10:37 a.m.” for Tobias’ | ainsurance policy with USAgencies; (2) a copy of the finance agreement between Tobias and LIFCO signed on May 19, 2008, which included a power of attorney authorizing LIFCO to cancel the policy in the event of non-payment of any installment; (3) a copy of Tobias’ application for personal automobile insurance dated May 19, 2008; (4) a copy of the ten-day notice of cancellation dated July 9, 2008 sent to Tobias that stated the effective date and hour of cancellation was 12:01:00 AM on July 19, 2008; (5) an affidavit of proof of mailing the notification dated July 9, 2008; and (6) a copy of the LIFCO’s July 9, 2008 notice to USAgencies to cancel Tobias’ policy for non-payment.

USAgencies also submitted an affidavit from Jenna Laughlin, the USAgencies Management Services employee that supervises LIFCO. Ms. Laughlin attested to the terms of Tobias’ finance agreement and his failure to pay prior to the cancellation date. The affidavit also verified that LIFCO did make a written request to USAgencies to cancel the policy due to non-payment of premium. Finally, the affidavit confirmed that the policy in question was not reinstated before the date of the accident.

Ms. Nions and Ms. Richardson filed an opposition to USAgencies’ motion, which did not itself include any supporting documents or attachments. On January 20, 2010, the trial court heard and granted summary judgment in favor of USAgen-cies.

Here, appellants argue that the trial court erred, as a matter of law, in granting summary judgment in favor of USAgen-cies because there was no genuine issue of fact regarding USAgencies’ failure to comply with the pertinent law. The ^appellants contend that the trial court’s ruling in favor of USAgencies was erroneous for two reasons: first, LIFCO did not mail an actual “notice of cancellation” to the insured, as required by the statute and second, LIFCO failed to certify that it sent “actual Notice of Cancellation” to the Secretary of the Department of Public Safety, Office of Motor Vehicles.

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 that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). The 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).

Appellate courts review a judgment granting or denying a motion for summary judgment de novo. Bonin v. Westport Ins. Corp., 05-886 (La.5/17/06), 930 So.2d 906, 910. Thus, appellate courts ask the same questions the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Cutsinger v. Redfern, 08-2607 (La.5/22/09), 12 So.3d 945 (citing Smith v. Our Lady of the Lake Hosp., 93-2512 (La.7/5/94), 639 So.2d 730). Interpretation of an insurance policy ordinarily involves a legal question that can be properly resolved by a motion for summary judgment. Id. The burden of proof is on the insurance company to show that the policy had been canceled prior to the date of the loss that gave rise to the denied claim. Doucet v. State Farm Ins., 99-663 (La.App. 5 Cir. 11/30/99), 748 So.2d 1228, 1231.

La. R.S. 9:3550 applies to any person engaged in the business of financing insurance premiums for consumers entering into premium finance agreements or | sotherwise acquiring premium finance agreements. La. R.S. 9:3550(G) reads, in pertinent part:

G. Insurance contracts may be canceled upon default as follows:
(1) When a premium finance agreement contains a power of attorney enabling the insurance premium finance company to cancel any insurance contract ..., the insurance contract ... shall not be canceled ... unless such cancellation is effectuated in accordance with this Subsection.
(2) Upon default of the insurance premium finance agreement by the debtor, the premium finance company shall mail or send an electronic notice of cancellation to the insured, at his last known mailing or electronic address as shown on the records of the insur-anee premium finance company. In the event the default is not timely cured as provided herein and the insurance policy is canceled pursuant to the terms of the insurance premium finance agreement, a copy of the notice of cancellation of the insurance contract shall also be sent to the insurance agent negotiating the related insurance contract whose name and place of business appears on the insurance premium finance agreement. Such notice of cancellation shall also state the name of any governmental agency, holder of a security interest in the insured property, or third party also requiring notice of cancellation as shown on the insurance premium finance agreement.
(3)(a) Ten days after notice of cancellation has been mailed to the insured, or fourteen days when notice is sent from outside of this state, if the default has not been cured, the insurance premium finance company may thereafter effect cancellation of such insurance contract, ... by sending to the insurer, by depositing in the mail or with a private carrier, or via electronic mail, within five business days after the date of cancellation, except when the payment has been returned uncollected, a copy of the notice of cancellation together with a statement certifying that:
(i) The premium finance agreement contains a valid power of attorney as provided in Paragraph (1) of this Subsection.
|fi(ii) The premium finance agreement is in default and the default has not been timely cured.
(iii) Upon default, a notice of cancellation was sent to the insured as provided in Paragraph (2) of this Subsection, specifying the date of sending by the premium finance company to the insured.
(iv) Copies of the notice of cancellation were sent to all persons shown by the premium finance agreement to have an interest in any loss which may occur thereunder, specifying the names and addresses of any governmental agencies, holders of a security interest in the insured property, or third parties to whom the insurance premium finance company has sent notice of cancellation.
(b)(i) Upon receipt of such notice of cancellation and statement from the premium finance company, the insurer shall consider that cancellation of the insurance contract ... has been requested by the insured ... and the insurer may proceed to cancel such contract or contracts as provided in R.S. 22:885. The effective date of cancellation shall be as of 12:01 a.m. on the tenth day after the date of sending of the notice of cancellation as shown in said statement furnished to the insurer by the premium finance company.
(c) The receipt of such notice of cancellation and statement by the insurer shall create a conclusive presumption that the facts stated in said notice and statement are correct, that the insurer is entitled to rely on such facts and that the cancellation of the insurance contract or contracts is concurred in and authorized by the insured.

In their first argument, appellants specifically contend that USAgencies did not comply with La. R.S. 9:3550(G) because LIFCO’s “certification statement does not state that it sent the actual Notice of Cancellation to all persons shown by the premium finance agreement to have any interest in any loss which may occur thereunder,” as required by La. R.S. 9:3550(G)(3)(a)(iv). [Emphasis in original.]

Appellants, relying on Dairyland Insurance Company v. Marks, 468 So.2d 841 (La.App. 1 Cir. 4/16/85), argue that “a notice of intent to cancel a policy within ten days,” like the notice sent to Tobias, is a demand for payment, which is | ^different from an actual notice of cancellation. Appellants contend that USAgencies’ failure to send an “actual” notice of cancellation to Tobias means that USAgencies did not legally cancel the Lability insurance policy it issued to Tobias.

In response, USAgencies contends that Dairyland, supra is inapplicable to this case because the LIFCO’s “TEN (10) DAY NOTICE OF CANCELLATION” in this case is materially different than the notice sent in Dairyland. At the hearing on its Motion for Summary Judgment, USAgen-cies submitted a copy of the notice in question dated July 9, 2008, which reads:

You are hereby notified that the policy described above is cancelled due to nonpayment of an installment. The cancellation is effective on the above captioned Effective Date of Cancellation, at the hour indicated.
The premium finance company will notify the following governmental agencies, lien holders and other third parties of the policy cancellation:
Department of Motor Vehicles; P.O. Box 64886;
Baton Rouge, LA 70896
To continue your policy without interruption of coverage, please remit the Balance Due ... prior to the Effective Date of Cancellation listed above.
After the Effective Date of Cancellation, an additional late fee ... will be assessed ... [,] which must be remitted before the policy is reinstated.

On that same “TEN (10) DAY NOTICE OF CANCELLATION,” the effective date/hour of cancellation is listed as “07/19/2008 12:01:00 AM.”

In Dairyland Insurance Company v. Marks, 468 So.2d 841, 843 (La.App. 1 Cir. 4/16/85), the notice, which was found to be insufficient, read in bold red letters as follows: “IMPORTANT: INSURANCE IS SUBJECT TO CANCELLATION IF PAYMENT IS NOT RECEIVED WITHIN 10 DAYS OF THIS NOTICE.”

IsAfter comparing the language of USA-gencies “TEN (10) DAY NOTICE” to that found to be insufficient in Dairyland, we agree with USAgencies that the notice sent to Tobias was, unlike that in Dairy-land, an unambiguous and unequivocal notice of cancellation. Tobias was clearly put on notice that his policy was cancelled and his coverage would terminate at 12:01 a.m. on July 19, 2008, if he failed to pay his premium prior to that date. This argument is without merit.

Next, appellants argue that USA-gencies failed to comply with La. R.S. 9:3550(G) when it failed to certify that it sent “actual Notice of Cancellation” to the Secretary of the Department of Public Safety, Office of Motor Vehicles. This failure, according to appellants, means that the cancellation of Tobias’ policy was legally ineffective.

First, the relevant statute, La. R.S. 9:8550(G)(3) (c), states in part, that the insurer is entitled to rely on the facts transmitted by the premium finance company, and no liability of any nature whatsoever in favor of the insured shall be imposed upon the insurer as a result of the failure of any governmental agency to receive a required notice of cancellation. Second, in Clay v. Entwisle, 10-19 (La.App. 5 Cir. 5/25/10), 42 So.3d 419, 425, this Court recently held that, “According to the statute, valid cancellation as to the insured is not dependent upon notice to the OMV.” Accordingly, this argument is without merit.

Upon de novo review, we find that the trial court correctly found that there was no issue of material fact that the policy had been cancelled and that USAgencies was entitled to summary judgment. For the foregoing reasons, the judgment is affirmed.

AFFIRMED

      . LIFCO’s notice to USAgencies to cancel To-bias’ policy included a certification that:
      (1) The premium finance agreement contained a valid power of attorney;
      (2) The premium finance agreement was in default and the default had not been timely cured;
      (3) Upon default, a ten-day notice of cancellation was mailed to the insured, with a copy enclosed;
      (4) Copies of the 10 day Notice of Cancellation were mailed to all persons shown in the agreement to have an interest in any loss which may occur thereunder.

      . In the present case, the Power of Attorney given by Tobias to LIFCO reads:
      I give you a Power of Attorney. If I fail to pay even one installment on the Promissory Note, I authorize you to cancel my insurance policy.... I give a Power of Attorney to notify my insurance company and any persons entitled to notice informing them of the cancellation of my insurance policy. After payment of all amounts due to you under this Agreement, I also give you Power of Attorney to pay to the insurance company (or allow the Insurance Company to retain) any unearned premiums or other amountsf,] which the insurance company may otherwise owe me, in order to purchase as much continued coverage under the insurance policy as such funds permit. I may not revoke this Power of Attorney while my Promissory note remains unpaid.


text:
    Kelvin NOBLE v. The ESTATE OF Henry C. MELIUS, Thomas Melius, Jr., Metairie Small Animal Hospital, Inc., Leonce Edgar Cambre and Diane Lucille Cambre Jacob, Heirs of The Estate of Althea Melius Cambre, and Whitney Joseph, Jr., in his Capacity as Assessor of St. John the Baptist Parish & Ervin Nicholson.
    No. 10-CA-549.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 9, 2011.

      Abril B. Sutherland, Geraldine Brous-sard-Baloney, Garyville, LA, for Plaintiff/Appellant, Kelvin Noble.
    Samuel J. Accardo, Jr., Attorney at Law, LaPlace, LA, for Defendants/Appel-lees, The Estate of Henry Melius, Thomas W. Melius, Jr., David Melius, Brian Melius and Donna Melius Jolly on Behalf of the Estate of Henry C. Melius; Dianne Jacob and Leonce Edgar Cambre on Behalf of the Estate of Althea Melius Cambre.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and FREDERICKS HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge.

| ffhis appeal arises in a dispute over title to immovable property. The plaintiff seeks to recover the price he paid for the land, plus property taxes he paid, and damages for personal injury. The plaintiff sued multiple defendants, including two of the original sellers of the property and the heirs of two other original sellers, as well as the parish tax assessor and an individual whose title to the land preceded the plaintiffs. In a judgment dated August 25, 2009, the district court granted exceptions of prescription filed by some defendants. The plaintiff appeals. We affirm, and we remand the matter for further proceedings regarding the remaining defendants.

FACTS

On November 21, 2008, Kelvin Noble filed suit against various parties, seeking to have his purchase of a parcel of land declared a nullity and to recover the sale price or, alternatively, damages for fraud, and to recover property taxes he paid over the years since he purchased the property.

The petition made the following allegations:

On July 24, 1984, the plaintiff purchased a lot in Reserve, St. John the Baptist Parish, from Althea L. Melius Cambre, Thomas W. Melius, Jr., Henry C. Melius, and Metairie Small Animal Hospital, Inc., by Act of Cash Sale for the |sprice of $8,000.00. The Act of Cash Sale described the land as Lot No. 16, Square 4 of Melius Subdivision Extension No. 2 in Reserve, St. John the Baptist Parish.

On August 28, 1984, at the request of the sellers’ attorney, the plaintiff executed an Act of Correction that changed the legal description in the act of cash sale from “Lot 16, Square 4” to “Lot 16, Square 7” of Melius Subdivision Extension No. 2.

The plaintiff later had the property surveyed. As a result of the survey, the plaintiff discovered that “Lot 16, Square 7 of Melius Subdivision, Extension No. 3” had been sold to Ervin Nicholson on December 5,1983, and that there is no Melius Subdivision Extension No. 2, but rather only a Melius Subdivision Extension No. 3.

The petition alleged the sale is an absolute nullity because either the property sold to the plaintiff does not exist or, alternatively, if the mark bearing Extension No. 2 is not a typographical error, the sellers were not the owners of the property they sold to the plaintiff because they had previously sold the property to Nicholson. The petition alleged the sale is both an absolute nullity because it was the sale of a thing that does not exist, and a relative nullity due to error.

Further, the petition asserted, the sale was fraudulent and the sellers had been unjustly enriched, because the original act of sale conveyed one property to the plaintiff, while the Act of Correction conveyed to him another piece of land that either does not exist or belongs to another.

[4The petition also named as defendants the parish tax assessor, Whitney Joseph, Jr., and the purchaser of “Lot 16, Square 7 of Melius Subdivision, Extension No. 3,” Ervin Nicholson. The plaintiff sought to recover from the tax assessor the property taxes he had paid on the land since the date of purchase. Alternatively, in the event Nicholson had not paid taxes on the property, the plaintiff alleged that Nicholson was unjustly enriched by the plaintiffs payment of the taxes, and that Nicholson is liable to the plaintiff for any and all tax payments the plaintiff had made, plus interest.

The petition sought to recover from the seller defendants the purchase price and damages for pain and suffering, mental anguish, and inconvenience, as well as interest from date of judicial demand until paid, including attorney’s fees and costs, and expert fees and costs, resulting from the purported sale. The plaintiff sought interest on each tax payment from the date each payment was made, plus judicial interest from date of demand.

The seller defendants filed answers that included exceptions of prescription. They asserted that all of the plaintiffs causes of action had prescribed because the original Cash Sale was executed on July 24, 1984; the Act of Correction was executed on August 28, 1984; the survey is dated June 23, 1992; the plaintiffs counsel sent a demand letter on July 7, 2006; yet the plaintiffs suit was not filed until November 21, 2008.

The seller defendants asserted there was sufficient information in the June 23, 1992 survey to put the surveyor and the plaintiff on notice of the need for further inquiry, in that the survey is titled “Melius Subdivision — Extension 2,” but the property description itself is “Survey Plat of Lot 16, Square 7, Melius [5Subdivision 3.” (Emphasis added.) Similarly, the plaintiffs demand letter dated July 7, 2006, indicates he learned of the underlying facts on or before that date. The seller defendants asserted the plaintiff had actual or constructive notice to begin the running of prescription. In addition, they asserted that the fault, negligence and knowledge of the notary public, who prepared the act of cash sale and the act of correction, and of the surveyor, should be imputed to the plaintiff.

The seller defendants asserted that all the claims and actions made the basis of the suit are prescribed on the face of the petition. They pleaded the prescriptions of ten years for personal actions, including for unjust enrichment, under La. C.C. art. 3499, five years for annulment of a relatively null contract, under La. C.C. art. 2032, and one year for all delictual actions, including for vices of consent (error, mistake, or fraud) under La. C.C. art. 3492.

The district court held a hearing on the exceptions of prescription on April 9, 2009. No testimony or other evidence was presented, merely argument by counsel. The court took the matter under advisement and rendered judgment on August 25, 2009.

In the judgment the court found the claims prescribed. The judgment incorporated reasons for the ruling, in which the court stated it found the applicable prescriptive periods were five years for relative nullity, under La. C.C. art. 2032, and ten years for personal actions, under La. C.C. art. 3499. The court specifically found as follows:

The court finds that this matter does not involve an absolute nullity. The object here is not immoral; the object is a plot of land. An illicit object is one that is illegal. The sale of a plot of land is not illegal. Even the sale of no land does not make the contract illegal. If the petition is arguing that the sale was of an object that is non-existent, the buyer was defrauded. An action for a fraudulent sale is a relative nullity. The prescriptive period for a relative nullity is five years.
| (jHere, the grounds for nullity would be error or fraud. In either case, the alleged fraud by the seller of the title, or the errors as to the correct plot of land which was purchased, ceased once the land was surveyed in 1992. The purchaser was put on notice of the alleged discrepancy/fraud no later than 1992. If fraud or error exists herein, the time started running in 1992 when the survey was returned ... a survey allegedly commissioned by petitioner. The court learned from the Petition herein that the next action petitioner took was to write defendants a letter in 2006. Suit was filed in 2008. The lapse in action exceeds the five year period.
Likewise, should this claim be purely a personal action, the claim is prescribed by the same reasoning, using the same dates to calculate the applicable delays. The contract was executed in 1984. The survey, even if it indicated a fraudulent transaction, was dated June 23, 1992. The lapse in action exceeds the ten year period associated with prescription of personal actions.
In conclusion, the claims asserted by petitioner against the Melius heirs and Metairie Small Animal Hospital are prescribed. The exceptions of prescription are GRANTED. The claims are hereby dismissed at petitioner’s costs.
The plaintiff has appealed.

LAW AND ANALYSIS

On appeal the plaintiff asserts the trial court erred in granting the exceptions of prescription because the seller defendants did not meet the burden of establishing that the plaintiff discovered the ground for nullity, specifically that the sellers did not own the property at the time of the purported sale.

“Unless otherwise provided by legislation, a personal action is subject to a liber-ative prescription of ten years.” La. C.C. art. 3499.

“Action for annulment of an absolutely null contract does not prescribe. Action of annulment of a relatively null contract must be brought within five years from the time the ground for nullity either ceased, as in the case of incapacity or duress, or was discovered, as in the case of error or fraud.” La. C.C. art. 2032.

|7“A contract is relatively null when it violates a rule intended for the protection of private parties, as when a party lacked capacity or did not give free consent at the time the contract was made. A contract that is only relatively null may be confirmed.” La. C.C. art. 2031.

The standard controlling review of a peremptory exception of prescription requires that the appellate court strictly construe the statutes against prescription and in favor of the claim that is said to be extinguished. Babin v. Babin, 08-776, p. 3 (La.App. 5 Cir. 3/10/09), 10 So.3d 784, 785, writ denied, 2009-0813 (La.6/19/09), 10 So.3d 735.

In reviewing a peremptory exception of prescription, an appellate court will review the entire record to determine whether the trial court’s finding of fact was manifestly erroneous. Burg v. Living Centers East Inc., 09-248, p. 4 (La.App. 5 Cir. 10/27/09), 28 So.3d 353, 355.

If we find that the trial court’s decision is based on an erroneous interpretation or application of the law, that incorrect decision is not entitled to deference. On legal issues, the appellate court gives no special weight to the finding of the trial court, but exercises its constitutional duty to review questions of law and renders judgment based on the record. [Citations omitted.]

Guillory v. Hebert, 08-659, p. 8 (La.App. 5 Cir. 1/12/10), 31 So.3d 1097, 1102.

“Ordinarily, the party pleading the exception of prescription bears the burden of proving the claim has prescribed. However, when the face of the petition reveals that the plaintiffs claim has prescribed, the burden shifts to the plaintiff to show why the claim has not prescribed.” Hogg v. Chevron USA, Inc., 2009-2682, p. 7 (La.7/6/10), 45 So.3d 991, 998.

The plaintiff asserts the petition is not prescribed on its face, because it is silent as to the exact date that the plaintiff discovered the grounds for nullity. |sHence, he contends, the burden of proving prescription remained with the seller defendants, but they failed to carry the burden.

The plaintiff argues that the seller defendants did not offer any evidence that the 1992 survey discovered the title defect that is the basis for his claim of nullity, nor did they make such an argument. He points out the seller defendants failed to present any evidence that he had knowledge that the sellers did not own the property at the time his act of sale was passed. Rather, the seller defendants argued that the notation on the survey referencing the lot and subdivision was sufficient to notify the plaintiff of a potential title defect. The plaintiff contends that even if the survey did raise a question as to whether the act of sale or the subsequent act of correction contained a typographical error, that would not be sufficient to commence the running of prescription.

In opposition to the appeal, the seller defendants contend the trial court did not commit manifest error in granting their exceptions of prescription. They argue that the plaintiff “provided the very evidence on the face of his petition, with attachments, which showed that his claims are prescribed.” Specifically, he attached to his petition the survey that completed and provided to him in 1992, nearly 16 years before he filed suit. The seller defendants assert that the plaintiffs arguments are mutually exclusive, in that he states the various actions he took to address title issues with the lot (an act of correction on August 28, 1984, and a survey of the property together with attachment of the survey to his petition).

The seller defendants point out that the plaintiff alleges he had his property surveyed on June 28, 1992, and attaches a copy of the survey, which indicates a different property than what was indicated by the description at the time the plaintiff purchased the property.

bThe defendants assert that the plaintiffs claim in his petition that the sellers were guilty of a fraudulent transfer of property does not specify as to how the alleged fraud was perpetrated. The defendants contend it is clear this case involves an error in the property description rather than an intent by the sellers to defraud the plaintiff.

In effect, the plaintiffs assertion that he should not have been expected to know the property description was erroneous raises the defense of contra non valentem. Our supreme court has defined four factual situations in which the doctrine of contra non valentem applies so as to prevent the running of liberative prescription:

(1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action;
(2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting;
(3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; or
(4) where the cause of action is neither known nor reasonably knowable by the plaintiff even though plaintiffs ignorance is not induced by the defendant.

Renfroe v. State ex rel. Dept. of Transp. and Development, 2001-1646, p. 9 (La.2/26/02), 809 So.2d 947, 953.

The only one of those grounds that could apply under the facts set out in the pleadings in this case is No. 4, “where the cause of action is neither known nor reasonably knowable by the plaintiff even though plaintiffs ignorance is not induced by the defendant.”

The principle of contra non va-lentem “-will not exempt the plaintiffs claim from the running of prescription if his ignorance is attributable to his own | inwilfulness or neglect; that is, a plaintiff will be deemed to know what he could by reasonable diligence have learned.” Renfroe v. State ex rel. Dept. of Transp. and Development, 2001-1646, p. 10 (La.2/26/02), 809 So.2d 947, 953.

If an opportunity is afforded to a party to know and to learn about a certain matter bearing on his interest and he fails or refuses to profit by it, if he closes his eyes to the notice spread before him and shuts his ears to oral information directly imparted to him, the law will hold him as bound by the same, and as fully notified as if he had taken thorough personal cognizance at the time of the information imparted and of the notice given.

Monson v. Travelers Property & Cas. Ins. Co., 09-267, p. 6 (La.App. 5 Cir. 12/8/09), 30 So.3d 66, 70, writ denied, 2010-0043 (La.3/12/10), 28 So.3d 1030; Caro v. Bradford White Corp., 96-120, p. 6 (La.App. 5 Cir. 7/30/96), 678 So.2d 615, 618.

As the defendants point out, the plaintiff admitted on the face of his petition that he was aware of a potential title discrepancy in his act of sale; indeed, he was asked to execute an act of correction a little over a month after the sale. Further, the 1992 survey of the property clearly indicated a discrepancy as to the description of the property.

We find the trial court did not commit manifest error in determining that the plaintiffs claims have prescribed.

First, the plaintiff was put on notice of the alleged discrepancy no later than 1992; hence, the time within which to file suit began running at latest in 1992. Yet the plaintiff took no action until sending his demand letter in 2006, and he did not file suit until 2008. Clearly, the five-year period under La. C.C. art. 2031 expired before the suit was filed.

In addition, as the trial court found, the 10-year prescription for personal actions also was tolled. The act of sale, and the subsequent act of correction, took l^place in 1984. The survey, even if it indicated a fraudulent transaction, was rendered in 1992. The 10-year period for personal actions under La. C.C. art. 3499 also had lapsed by the time suit was filed in 2008.

We note that the judgment on appeal does not address all the claims made by the plaintiff, only his claims as to certain of the defendants. The judgment is a partial final judgment; hence, we remand the matter for further proceedings as to the remainder of the claims and defendants.

DECREE

For the foregoing reasons, the judgment is affirmed. The matter is remanded for further proceedings regarding the remaining defendants. Costs of this appeal are assessed against the plaintiff, Kelvin Noble.

AFFIRMED AND REMANDED.

      . Henry Melius and Althea Melius Cambre, two of the original sellers, had died in the interval between the sale and the filing of the lawsuit. Therefore, the plaintiff sued their heirs: Katherine Barth Melius, Donna Melius Jolly, David Barth Melius, Sr., and Dr. Brian Hemy Melius as the heirs of Henry C. Melius; Leonce Edgar Cambre and Diane Lucille Cambre Joseph as the heirs of Althea Melius Cambre.

      . The survey, attached to the petition as Plaintiff’s Exhibit C, is dated June 23, 1992.

      .The seller defendants are Metairie Small Animal Hospital, Inc. ("MSAH”); Thomas Melius; David Melius, Brian Melius, and Donna Melius Jolly on behalf of the Estate of Hemy C. Melius; and Dianne Jacob and Leonce Edgar Cambre on behalf of the Estate of Althea Cambre. Katherine Barth Melius, also alleged to be an heir of Henry C. Melius, appeared only through a general denial filed by a curator ad hoc.

      . At first Metairie Small Animal Hospital was represented by different counsel from the counsel representing Thomas Melius, the heirs of Henry Melius, and the heirs of Althea Cambre. Eventually counsel for the Melius heirs took over defense of Metairie Small Animal Hospital, so now all the seller defendants are represented by one counsel, except for Katherine Barth Melius.