text:
    TEXAS GAS EXPLORATION CORPORATION v. LAFOURCHE REALTY COMPANY, INC., et al. CSX Oil and Gas Corporation v. Lafourche Realty Company, Inc., et al. Total Minatome Corporation v. Lafourche Realty Company, Inc., et al. Lafourche Realty Company, Inc. v. Total Minatome Corporation, et al.
    Nos. 2011 CA 0520, 2011 CA 0521, 2011 CA 0522, 2011 CA 0523.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 9, 2011.
    Rehearing Denied Jan. 11, 2012.

      Jefferson D. Stewart, Charles A. Cerise, Jr., Raymond P. Ward, Shelly S. Howat, New Orleans, LA, David M. Richard, Thi-bodaux, LA, for Appellant/Plaintiff-in-Re-convention, Lafourche Realty Co., Inc.
    John M. Wilson, Cheryl M. Kornick, Kelly B. Becker, Matthew D. Simone, New Orleans, LA, for Appellee/Defendant-in-Reconvention, Energen Resources Corp., successor-in-interest by merger and name change to Total Minatome Corp., successor-in-interest to CSX Oil and Gas Corp., successor-in-interest to Texas Gas Exploration Corp.
    William R. Pitts, Metairie, LA, for Ap-pellees/Defendants-in-Reconvention, Ellen Lucy McHugh, as Trustee of the Ellen Lucy McHugh Trust, et al.
    Gary A. Lee, John M. Futrell, Richard M. Perles, David L. Hoskins, New Orleans, LA, for Appellees/Defendants-in-Reconvention, the Harrison Lessors.
    P. Albert Bienvenu, Jr., New Orleans, LA, for Appellees/Defendants-in-Recon-vention, Carolyn Atkinson Bienvenu as Executrix of the Succession of Paul Albert Bienvenu, and the Succession heirs Carolyn Bienvenu, P. Albert Bienvenu, Jr., Carolyn Bienvenu Richardson McClave, and Richard A. Bienvenu.
    Before CARTER, C.J., PARRO, and HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

|aThe merits of this appeal in these consolidated cases relate to the interpretation of an oil royalty payment clause in an oil and gas lease. After rendering a partial summary judgment interpreting the clause, the district court signed an order of appeal and simultaneously issued a per curiam explaining why the district court declined to certify the judgment as final for purposes of an immediate appeal. After the record was lodged in this court, we issued, ex proprio motu, a rule for the parties to show cause by briefs why the instant appeal should not be dismissed as having been taken from a partial summary judgment without the proper designation of finality as required by La. C.C.P. art. 1915(B). For the following reasons, we do not reach the merits of the appeal, because we find that this court lacks appellate jurisdiction to review the partial summary judgment.

RELEVANT PROCEDURAL HISTORY

This litigation commenced as a concur-sus proceeding twenty-seven years ago, on August 24, 1984. Texas Gas Exploration Corporation (“Texas Gas”) named La-fourche Realty Company (“Lafourche Realty”) and the State Mineral Board of the State of Louisiana (“the State”) as defendants. The concursus proceeding involved multiple oil, gas, and mineral leases dating back to 1974, and the disputed ownership of land units in the Lake Enfermer Field (“the field”) in Lafourche Parish, Louisiana. A total of fourteen different lawsuits have been filed over the years since the litigation began. Some of the • lawsuits concerned the State and Lafourche Realty, but some involved other landowners. All fourteen lawsuits were eventually transferred and consolidated for trial; however, only four of the consolidated cases are at issue at this time (hereafter referred to as “the consolidated cases”). By 1994, the ownership disputes were resolved in favor of Lafourche Realty, and the record reflects that some of the lawsuits were dismissed. _|jAdding to the complexity of the procedural history, Texas Gas merged and changed the company’s name four times, eventually becoming Energen Resources Corporation (“Energen”).

As the successor-in-interest lessee, En-ergen was the designated operator for oil production under the Lafourche Realty leases, and was the appropriate party to pay and otherwise account for the royalties attributable to the leases for oil production from the field. In April 1996, Lafourche Realty filed first supplemental reconven-tional demands in three of the cases and instituted suit against successor-in-interest, Energen, in the consolidated cases. Lafourche Realty sets forth virtually the same allegations in all of its demands, seeking the right to additional economic benefits allegedly obtained by the lessee, Energen, from the marketing of the oil subject to the royalty interest. Lafourche Realty also named nine additional defendants-in-reconvention in each case, alleging that all of the defendants were lessees or working interest owners under one or more of the leases.

Lafourche Realty alleged that the lessees had an obligation to fulfill their obligations in good faith and to properly account for and pay royalties upon all of the economic benefits derived from the leases. Lafourche Realty further alleged that it had not been paid all of the royalties due and owing to it under the leases and pursuant to the mineral code, because of a marketing scheme whereby Energen had allegedly delivered crude oil produced from the field to a transporter company that then transported the oil from the field and redelivered it to Energen or Ener-gen’s designee. Lafourche Realty alleges that, at that point, the crude oil was refined for the sole economic benefit of En-ergen or sold by Energen to third parties, resulting in a greater economic benefit to Energen than the total price paid by the transporter in the field, which was the price upon which the oil royalties |5were calculated and paid to Lafourche Realty. Lafourche Realty further averred that En-ergen’s failure to pay royalties on the greater economic benefit through the marketing schemes was willful, without reasonable cause, and/or fraudulent, all in violation of the terms of the leases, La. R.S. 31:122 of the mineral code, and the laws of Louisiana.

Lafourche Realty requested that the district court find all of the defendants in default of their obligations to pay royalties and in breach of their obligations to operate the leased properties for the mutual benefit of the lessees and Lafourche Realty. Lafourche Realty further requested that the district court order the defendants to render a full and complete accounting of the amount of oil produced, pay royalties calculated on the basis of all of the economic benefits attributed to the leases, pay damages plus attorney’s fees and costs, and order cancellation and rescission of the leases.

On May 27, 2010, fourteen years after Lafourche Realty asserted its claims regarding fraud and underpayment of royalties against Energen and the other co-defendants, Energen filed a motion for summary judgment, claiming that La-fourche Realty was precluded as a matter of law from the relief it sought in the litigation. Energen relied on the specific clause in the mineral leases that addressed the payment of oil royalties: “Lessee [En-ergen] may sell Lessor’s [Lafourche Realty’s] oil at the best market price obtainable and pay Lessor [Lafourche Realty] the price received f.o.b. the leased property.”

In Energen’s memorandum in support of its motion for summary judgment, En-ergen stated that it was “seeking dismissal of all claims by Lafourche Realty ... against Energen,” because Lafourche Realty’s claims contradicted the plain and unambiguous language of the leases. En-ergen maintained that “[s]ummary judgment is appropriate to ‘a particular issue’ or ‘theory of recovery,’ [pursuant to La. C.C.P. art.] 966(E).” In support of its motion, Energen filed deposition excerpts and an affidavit, along with authenticated copies of the leases and copies |6of Ener-gen’s contracts with its transporter. In opposition to Energen’s motion for summary judgment, Lafourche Realty offered affidavits and expert reports, all relating to Energen’s supposed efforts to hide the allegedly fraudulent marketing schemes from its royalty owners.

After a hearing, the district court granted Energen’s motion for summary judgment on November 30, 2010. The judgment dismissed Lafourche Realty’s cause of action, pursuant to La. R.S. 31:140, “asserting failure of the mineral lessee to make proper payment of royalties.” In written reasons for judgment, the district court emphasized that the summary judgment dismissed only one of Lafourche Realty’s causes of action. The district court stated that Lafourche Realty had asserted two causes of action in its first supplemental reconventional demand: (1) “a cause of action for failure of the lessee to make proper payment of royalties under [La. R.S.] 31:140,” and (2) “a cause of action alleging fraud under [La. C.C. art.] 1953 in violation of the mineral lessee’s obligation to act as a reasonably prudent operator under [La. R.S.] 31:122 to market the crude oil for the mutual benefit of the mineral lessor and mineral lessee.” The district court then concluded in written reasons that Energen’s motion for summary judgment did not pray for a judgment dismissing Lafourche Realty’s second cause of action asserting Energen’s alleged fraud. The partial summary judgment signed by the district court was silent regarding the second cause of action, and the judgment did not address the claims of any other lessees that had been named in the consolidated cases. Additionally, the judgment did not specify which of the consolidated cases was affected by the partial summary judgment.

On January 7, 2011, Lafourche Realty filed a motion for appeal or, alternatively, motion to certify the judgment as final for appeal. Energen opposed the motion, and the district court denied Lafourche Realty’s motion for appeal as |7premature on January 28, 2011. Lafourche Realty filed a second motion for devolutive appeal, which was granted by the trial court on February 3, 2011. In opposition to the motion to certify the partial summary judgment as final, Energen argued that the November 30, 2010 judgment “did not address the [identical] claims of the [other defendants] in these consolidated cases,” and did not adjudicate the “two additional causes of action found in Lafourche Realty’s First Supplemental Reconventional Demand: a cause of action against Ener-gen for alleged fraud pursuant to [La. C.C. art.] 1953, and a cause of action against Energen for alleged breach of the obligation to act as a prudent operator under [La. R.S. 31:122] to market the crude oil for the mutual benefit of Energen and its mineral lessor, Lafourche Realty.”

On the same day that the district court granted Lafourche Realty’s second motion and order of appeal, February 3, 2011, the district court issued a per curiam, essentially adopting Energen’s opposing position that the November 30, 2010 judgment was not a final, appealable judgment. The district court stated:

The motion to grant an order for a devolutive appeal filed by [Lafourche Realty] on February 3, 2011[,] seeks to appeal a summary judgment granted pursuant to [La. C.C.P. art. 966(E),] and it is therefore not a final, appealable judgment. The [district] court does not determine and designate the summary judgment as a final judgment under the provisions of [La. C.C.P. art. 1915(B).] The [district] court cannot determine there is no just reason for delay due to the relationship between the adjudicated claim and the unadjudicated claim of [Lafourche Realty] asserting fraud by the mineral lessee in violation of the mineral lessee’s obligation to act as a reasonably prudent operator to market the crude oil for the mutual benefit of the mineral lessor and mineral lessee.

In its appellate brief filed in this court, Lafourche Realty assigns one error, asserting that the district court erred in granting summary judgment in favor of Energen, because the district court misinterpreted the oil royalty payment clause. After this appeal in these consolidated cases was lodged in this court, we issued, ex | ¿proprio motu, a rule to show cause whether the appeal should be dismissed because of the lack of a proper La. C.C.P. art. 1915(B) designation of finality, and in light of the district court’s per curiam expressly declaring that the partial summary judgment was NOT a final, appeal-able judgment. In response to the rule, both Lafourche Realty and Energen filed briefs maintaining that the judgment was final and appealable because “for all practical purposes,” it resolves all issues between Lafourche Realty and Energen, and therefore, does not require an article 1915(B) certification. Essentially, the parties argue that Lafourche Realty’s claims asserting Energen’s fraud and failure to market as a reasonably prudent operator are not separate from Lafourche Realty’s underlying claim for payment of royalties in accordance with the oil royalty payment clause in the leases.

LAW AND ANALYSIS

Appellate courts have the duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Motorola, Inc. v. Associated Indem. Corp., 2002-0716 (La.App. 1st Cir. 4/30/03), 867 So.2d 715, 717 (Motorola I). A final judgment of the district court may be appealed. See La. C.C.P. art. 2083. A judgment that determines the merits in whole or in part is a final judgment. La. C.C.P. art. 1841. Whether a partial final judgment is appealable is determined by examining the requirements of La. C.C.P. art. 1915. See La. C.C.P. art. 1911. It is appropriate for us to consider the basis for our jurisdiction before addressing the merits of this appeal. Motorola I, 867 So.2d at 717.

19Louisiana Code of Civil Procedure article 1915 authorizes the immediate appeal of partial final judgments, including partial summary judgments, with an appropriate designation by the district court. The November 30, 2010 judgment does not fall within the ambit of La. C.C.P. art. 1915(A), because the summary judgment in this case falls under the provisions of La. C.C.P. art. 966(E). See La. |inC.C.P. art. 1915(A)(3). Thus, La. C.C.P. art. 1915(B)(1) requires that the district court designate a partial summary judgment as a final judgment after an express determination that there is no just reason for delay. In the absence of such a determination and designation, the judgment shall not constitute a final judgment for the purpose of an immediate appeal. La. C.C.P. art. 1915(B)(2).

In the per curiam simultaneously issued by the district court when the order of appeal was signed, the district court expressly determined that the No-vember 30, 2010 judgment was not a final, appealable judgment and refused to designate or certify the judgment as final, because it could not determine that there was no just reason for delay. The district court reasoned that the resolution of the one adjudicated claim, which dismissed La-fourche Realty’s cause of action regarding Energen’s alleged failure to make proper payment of royalties under La. R.S. 31:140, did not resolve the other related unadjudicated claims regarding Lafourche Realty’s allegation of fraud by Energen in violation of its obligation to act as a reasonably prudent operator to market the crude oil for the mutual benefit of Energen and Lafourche Realty pursuant to La. R.S. 31:122. We agree with the district court’s determination and find no abuse of discretion in the certification decision.

This partial summary judgment concerns only one issue/cause of action, and it falls squarely within the parameters of La. C.C.P. art. 1915(B). Since the district court specifically considered and then refused to designate the partial summary judgment as final and appealable, the appeal in these consolidated cases is not properly before this court. See Richardson v. Tessier, 2007-0874 (La.App. 1st Cir.11/2/07), 977 So.2d 55, 56; In re Succession of Faget, 2006-2159 (La.App. 1st Cir.9/19/07), 984 So.2d 7, 10. See also In re Succession of Guilbeau, 2010-1200 (La.App. 3d Cir.12/1/10), 51 So.3d 185, 187-88. We find this to be a jurisdictional defect in that “[n]o appeal may be taken ... until the judgment has been designated a final judgment under Article 1915(B).” See La. C.C.P. art. 1911 (emphasis added). This court cannot determine the merits of an appeal unless our appellate jurisdiction is properly invoked by a valid final judgment. Phoenix Associates Land Syndicate, Inc. v. E.H. Mitchell & Co., L.L.C., 2007-0108 (La.App. 1st Cir.9/14/07), 970 So.2d 605, 610, writ denied, 2007-2365 (La.2/1/08), 976 So.2d 723.

Both parties now maintain that the partial summary judgment, for all practical purposes, essentially resolved all issues between Lafourche Realty and Energen, even though no party was dismissed. Thus, the parties argue that the partial summary judgment is final and appealable pursuant to La. C.C.P. art. 1915(A), without the necessity of the district court’s designation of finality. In support of their position, the parties cite this court’s opinion in Jackson Nat. Life Ins. Co. v. Kennedy-Fagan, 2003-0054 (La.App. 1st Cir.2/6/04), 873 So.2d 44, 48, writ denied, 2004-0600 (La.4/23/04), 870 So.2d 307, where we held that a judgment was final even though it did not determine all claims or dismiss any parties, because it essentially resolved all of the issues that related to the sum in dispute on the principal demand. An obvious distinction between this case and Jackson National Life, is that the district court in Jackson National Life did not issue a per curiam specifically holding that the judgment was not final and appealable, as was done by the district court in this case. Jackson National Life is |12also distinguishable, because in that case the principal demand was actually resolved in full by the judgment; thus, the judgment was not an “issue” summary judgment, and the debtor was entitled to a dismissal. Id., 873 So.2d at 48 n. 4.

In the case sub judice, none of the parties in Lafourche Realty’s reconventional demands and/or petition for damages that were filed in the four consolidated cases are in a posture for dismissal, and none were dismissed. We disagree with the parties’ argument that the “practical effect” of the district court’s judgment is termination of all of Lafourche Realty’s claims against Energen. There is absolutely no indication in the record that the district court considered and/or dismissed all of Lafourche Realty’s claims against Energen. There is also no evidence that the parties indicated to the district court that the ruling on the partial summary judgment for the one cause of action would eliminate the need to litigate any more claims between Lafourche Realty and En-ergen.

If Lafourche Realty is eventually successful in proving its claim that Energen acted fraudulently and breached its statutory obligation to act as a prudent operator when marketing the crude oil for the mutual benefit of Energen and Lafourche Realty, then Lafourche Realty may be entitled to damages for that alleged breach. While we concede that each of Lafourche Realty’s causes of action is closely related, we find that they are separate and distinct and based upon different provisions in the mineral code. Thus, we conclude that the dismissal of one cause of action did not “essentially resolve” any other causes of action in these consolidated cases. The same parties will continue to litigate the remaining claims, which if found to have merit, may render the merits of the present appeal moot. Further, due to the close connexity of the claims and the unresolved claims involving other parties, there is a strong possibility that this court might be required to consider the same issues in a subsequent appeal.

Additionally, another notable flaw we have discovered with the November 30, 2010 judgment is that it is unclear whether all of the consolidated cases are 11Raffected by the district court’s ruling on the partial summary judgment. The record actually reflects the parties’ confusion in this regard, in the various memoranda filed in support of and in opposition to Lafourche Realty’s motion for new trial, original motion for appeal, and motion to certify the judgment as final. If the district court actually intended to dispose of all La-fourche Realty’s claims in all the consolidated cases as the parties now contend, this intent is certainly not evident from the language of the judgment, without resort to other filed pleadings or reference to other documents in the record. Therefore, it is apparent that this partial summary judgment does not contain the proper de-cretal language that is necessary for a final, appealable judgment, even if we were to find, as the parties desire, that the judgment fell under La. C.C.P. art. 1915(A). See Accardo v. Chenier Property Partners, LLC, 2010-0825, pp. 3-4 (La.App. 1st Cir.10/29/10) (unpublished), 56 So.3d 463 (table); See La. C.C.P. art. 2168. A valid final judgment must be precise, definite, and certain. Laird v. St. Tammany Parish Safe Harbor, 2002-0045 (La.App. 1st Cir.12/20/02), 836 So.2d 364, 365. In the absence of proper decretal language, the judgment is defective, and this court lacks jurisdiction to review the merits. Id., 836 So.2d at 366. For all of these reasons, we find that this appeal in these consolidated cases must be dismissed.

Furthermore, we decline to convert the appeal of this non-final judgment to a supervisory writ, because to do so would be a blatant circumvention of the spirit of Article 1915, causing the delay and inefficiency which the codal provision obviously is designed to eliminate. See In re Chemical Release at Bogalusa, 98-1122 (La.App. 1st Cir.8/27/98), 718 So.2d 1015, 1016, writ granted, in part, 98-2505 (La.11/6/98), 726 So.2d 916. We believe that in cases like this one, where the district court makes an express determination that it cannot certify there is no just reason for delay for an immediate appeal, it is improper to review the merits of|14the uncertified partial summary judgment pursuant to our supervisory jurisdiction, thereby avoiding and/or ignoring the district court’s discretionary ruling on the certification. See In re Succession of Grimmett, 31,975 (La.App. 2d Cir.3/5/99), 738 So.2d 27, 31.

We are mindful that the supreme court has instructed appellate courts to consider and rule upon the merits of a supervisory writ, even if the alleged error can be corrected on appeal, when: (1) a reversal will terminate the litigation; (2) there is no dispute of fact to be resolved; and (3) the trial court decision appears to be incorrect. Herlitz Const. Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981) (per curiam). However, in these consolidated cases, a factual issue that must still be resolved is whether Energen fraudulently breached its statutory obligation to act as a reasonably prudent operator to market the crude oil for the mutual benefit of Energen and Lafourche Realty. Additionally, a determination on the merits at this point as to whether Energen made proper royalty payments as required by the oil royalty payment clause in the leases would not terminate this litigation. All of the parties remain in the litigation. Thus, the Herlitz factors that would mandate a conversion of the present appeal of these consolidated cases to an application for supervisory writs have not been met, and we decline to exercise our supervisory jurisdiction in this instance. Lafourche Realty and Energen have an adequate remedy by review on appeal after a final judgment is rendered. See Best Fishing, Inc. v. Rancatore, 96-2254 (La.App. 1st Cir.12/29/97), 706 So.2d 161, 167.

CONCLUSION

We find the November 30, 2010 judgment herein is a partial summary judgment that adjudicates fewer than all of the claims, was not designated as final by the district court in accordance with La. C.C.P. art. 1915(B)(1), and is not a |iafinal, appealable judgment. As such, the judgment may be revised at any time prior to rendition of the final judgment that adjudicates all the claims and rights and liabilities of all the parties, in accordance with La. C.C.P. art. 1915(B)(2). We further find that since Lafourche Realty’s recon-ventional demands and petition for damages are still pending in the consolidated cases, involving the same parties and similar facts and issues, we are without appellate jurisdiction to consider the appeal in these consolidated cases concerning the partial summary judgment. We therefore dismiss this matter, without prejudice, for lack of jurisdiction.

In order to avoid piecemeal litigation, this appeal in these consolidated cases is dismissed, ex propria motu, and this matter is remanded to the district court for an adjudication of the remaining issues. Appellate costs are equally assessed to La-fourche Realty Company and Energen Resources Corporation.

APPEAL DISMISSED WITHOUT PREJUDICE; REMANDED FOR FURTHER PROCEEDINGS.

      . The lead docket number in the consolidated cases is 52468, which was consolidated with docket numbers 59436, 65168, and 79707.

      . All issues in the consolidated cases that pertained to royalty payments for gas production were dismissed as prescribed on June 6, 2008.

      . The district court determined that the partial summary judgment was not a final, ap-pealable judgment and that the motion for appeal was premature because Lafourche Realty had a pending motion for new trial. The motion for new trial was apparently untimely and was later withdrawn. Lafourche Realty then reurged its motion for appeal.

      . We note that this position directly conflicts with the position Energen argued to the district court when opposing Lafourche Realty’s motion and order for appeal, and alternative motion for certification. At oral argument before this court, both parties indicated that they were now in agreement that the partial summary judgment was final and appealable; however, that assertion is insufficient for designation purposes under La. C.C.P. art. 1915. See Van ex rel White v. Davis, 2000-0206 (La.App. 1st Cir.2/16/01), 808 So.2d 478, 481 n. 2. Under the present and applicable version of Article 1915, the parties may not invoke this court’s appellate jurisdiction to review a partial summary judgment by mutual consent. Shapiro v. L & L Fetter, Inc., 2002-0933 (La.App. 1st Cir.2/14/03), 845 So.2d 406, 410. The jurisdiction of a court over the subject matter of an action or a proceeding cannot be conferred by consent of the parties. La. C.C.P. art. 3; Bennett v. Arkansas Blue Cross Blue Shield, 2005-1714 (La.App. 1st Cir.9/15/06), 943 So.2d 1124, 1127.

      . Louisiana Code of Civil Procedure article 1915 provides as follows;
      A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
      (1) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or inter-venors.
      (2) Grants a motion for judgment on the pleadings, as provided by Articles 965, 968, and 969.
      (3) Grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E).
      (4) Signs a judgment on either the principal or incidental demand, when the two have been tried separately, as provided by Article 1038.
      (5) Signs a judgment on the issue of liability when that issue has been tried separately by the court, or when, in a jury trial, the issue of liability has been tried before a jury and the issue of damages is to be tried before a different jury. tó) Imposes sanctions or disciplinary action pursuant to Article 191, 863 or 864 or Code of Evidence Article 510(G).
      B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, reconventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
      (2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.
      C. If an appeal is taken from any judgment rendered under the provisions of this Article, the trial court shall retain jurisdiction to adjudicate the remaining issues in the case.
      (Emphasis added.)

      . Louisiana Code of Civil Procedure article 966(E) states in part, “A summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case[J” (Emphasis added.)

      . A district court's mere signing of an order for appeal from a partial summary judgment does not constitute a proper designation and will not make that judgment immediately ap-pealable. In re Succession of Guilbeau, 2010-1200 (La.App. 3d Cir. 12/1/10), 51 So.3d 185, 187; City of New Orleans v. Howenstine, 98-2157 (La.App. 4th Cir.5/5/99), 737 So.2d 197, 199.

      . In its per curiam, the district court provided reasons for not designating the partial summary judgment as final; therefore, we need not conduct a de novo review. Rather, the proper standard of review for certification decisions accompanied by the district court’s explicit reasons is whether the district court abused its discretion. See R.J. Messinger, Inc. v. Rosenblum, 2004-1664 (La.3/2/05), 894 So.2d 1113, 1122. See also Motorola, Inc. v. Associated Indem. Corp., 2002-1351 (La.App. 1st Cir. 10/22/03), 867 So.2d 723, 732-33.

      . The remedy available to Lafourche Realty for immediate review of the partial summary judgment when the district court declined to certify it as final was to apply for a writ of review under this court’s supervisory jurisdiction. However, the record reflects, and the parties confirmed at oral argument before this court, that no such application was filed.

      . See La. C.C.P. art. 1911, providing in part: “An appeal may be taken from a final judgment under Article 1915(A) without the judg-mentbeing so designated.”

      . In contrast, an earlier judgment rendered by the district court when ruling on an exception of prescription was very specific as to which causes of action and which docket numbers in the consolidated cases were affected by the judgment.

      . We also note that Lafourche Realty’s motion and order for appeal was not filed within the thirty-day time limit for a supervisory writ application. Thus, an application for supervisory writs would have been untimely. See Uniform Rules — Courts of Appeal, Rule 4-3.


source: Caselaw Access Project

author: GAIDRY, J.

license: Public Domain

text:
    Eric CAZAUBON v. CYCLE SPORT, LLC and Kawasaki Motor Corp., USA.
    No. 2011 CA 0289.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 9, 2011.

      Regel L. Bisso, Metairie, LA, for Defendant/Appellant Cycle Sport, LLC.
    David R. Frohn, Spencer L. Trahan, Lake Charles, LA, for Defendant/Appellant Kawasaki Motors Corp., USA.
    Richard C. Dalton, Scott, LA, for Plain-tiffAppellee Eric Cazaubon.

      Before GAIDRY, McDONALD, and HUGHES, JJ.
   GAIDRY, J.

|2In this redhibition suit stemming from the sale of a motorcycle, defendants appeal a judgment rescinding the sale and awarding plaintiff the original purchase price, expenses associated with maintaining the motorcycle, and attorney’s fees. We reverse.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Eric Cazaubon, purchased a 2006 Kawasaki ZX1400 from Cycle Sport, LLC on September 30, 2006. On April 17, 2007, Mr. Cazaubon allegedly tendered the motorcycle to Cycle Sport for repairs. When the motorcycle still remained at Cycle Shop, unrepaired, on July 20, 2008, Mr. Cazaubon filed this suit in redhibition against Cycle Sport and Kawasaki Motors Corporation, U.S.A., the manufacturer of the motorcycle. Mr. Cazaubon requested a reduction in the sale price, or a recision of the sale.

Cycle Sport answered the suit alleging that when Mr. Cazaubon returned the motorcycle for repairs, it had been modified and used for purposes which voided the warranty. Based upon this, Cycle Sport advised Mr. Cazaubon that no repairs could be made until he guaranteed payment for the repairs. Since he refused to do so, the motorcycle was not repaired. Further, Cycle Sport alleged that since all needed repairs were a result of plaintiffs modification and unauthorized use of the motorcycle, they did not exist at the time of the sale and thus are not redhibitory defects.

After a bench trial, the trial court found that the motorcycle had a defective engine and defective frame which rendered its use so inconvenient that Mr. Cazaubon would not have purchased it had he known of the defects, thereby entitling Mr. Cazaubon to a recision of the sale. Accordingly, the trial court rendered judgment in favor of Mr. Cazaubon and against Cycle |sSport and Kawasaki in solido in the amounts of $10,500.00 (the purchase price of the motorcycle) and $2,508.00 (the cost of preserving the motorcycle) and against Kawasaki in the amount of $7,500.00 (attorney’s fees). Cycle Sport and Kawasaki filed the instant appeal.

DISCUSSION

Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which either renders it absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice. La. C.C. art. 2520; Belle Pass Terminal, Inc. v. Jolin, Inc., 634 So.2d 466, 494, writ denied, 638 So.2d 1094 (La.1994). A purchaser may also request a reduction in the price of the thing where the lack of quality of the thing purchased is not of such importance as to warrant complete avoidance of the sale. Id. Both actions are subject to the same burden of proof. Id.

In order to establish a prima fa-cie case of redhibition, a purchaser must show that a non-apparent defect existed at the time of the sale. La. C.C. art. 2520 and 2530; Belle Pass Terminal, Inc., 634 So.2d at 494. “Defect” as contemplated in article 2520 means a physical imperfection or deformity or a lacking of the necessary components or level of quality. Id. Apparent defects which the purchaser might have discovered by simple inspection are not redhibitory defects. La. C.C. art. 2521.

Once the purchaser establishes a prima facie case, the burden shifts to the seller to show that he can somehow escape liability. Belle Pass Terminal, Inc., 634 So.2d at 494. Whether or not a thing is defective is a factual determination to be made by the trier of fact, which determination will not be set aside on appeal absent manifest error. Id.

|4The trial court in this case made a factual determination that the engine on Mr. Cazaubon’s motorcycle was defective. The evidence presented at the trial concerning the alleged engine problem is as follows:

Mr. Cazaubon testified that he first brought the bike into Cycle Sport over six months after he purchased it, complaining of an engine rattle. He had owned another bike just like this one that made a similar noise and had been repaired by Cycle Sport under the warranty. Based upon this experience, he believed he knew what the problem was and which parts needed to be changed to correct the problem. When he brought his bike into Cycle Sport on April 17, 2007, he told Dane Beagle, the service manager at the time, that the engine was making noise, and he helped Dane take the clutch cover, oil pan, exhaust, and side covers off to try to see what was wrong. He determined that one of the rods had some “play” in it and believed that the problem was similar to the problem with his other bike. He testified that Dane told him that the repair would be covered by the warranty and that he would order the parts. Mr. Cazaubon left the bike at Cycle Sport, where it sat for over a year without being worked on. He testified that he was told that the reason the bike was not being repaired was that Cycle Sport was having personnel problems. When a mechanic finally started to look at the bike, it was discovered that the frame was cracked. At that point, Mr. Cazaubon told the defendants that he did not want that bike back because the frame was cracked and because it had been at Cycle Sport for so long. He testified that he did not know if there was anything wrong with the bike at the time of trial because he had never gone back to get it or to examine it again after dropping it off on April 17, 2007.

| ¿Robert Miller, the owner of Cycle Sport, did not dispute that Mr. Cazaubon brought the bike in complaining of a knock or rattle and that parts were ordered by the service manager. He also admitted that he had no knowledge of what was told to Mr. Cazaubon at that time by the service manager concerning warranty coverage for the repairs. However, he testified that Mr. Cazaubon took the bike home on April 17, 2007 to wait for the parts to come in and did not bring it back in until August, and at that time he personally told Mr. Cazaubon that the repairs would not be covered by the warranty because the bike had been engaged in competitive racing, which voided Kawasaki’s warranty. He testified that Mr. Cazaubon had told him that he raced the motorcycle and he had also seen video of Mr. Cazaubon racing the motorcycle. As a result, he told Mr. Cazaubon that he would have to guarantee payment for the repairs before they would begin working on the bike. Mr. Miller claimed that when he told Mr. Ca-zaubon that the repairs would not be covered, Mr. Cazaubon initially said that he would contact Kawasaki himself to try to get it covered, then changed his mind and said that he would just pay Cycle Sport to put in a new motor that he would provide. When the mechanic took out the old motor on Mr. Cazaubon’s motorcycle to start working on it, he discovered that the frame was cracked, so he ordered a new frame and replaced it. No repairs were ever done to the engine, and Mr. Miller did not believe that there was ever anything actually wrong with the engine. This opinion was based on his assertion that Cycle Sport’s employees started the motorcycle almost every day to move it in and out of the shop and never heard any noise. Although they did not test out the motor initially because Mr. Cazaubon had removed the exhaust, after this litigation began Cycle Sport put a stock exhaust on the bike and tested it and found nothing wrong. Cycle Sport then sent the bike | fito another dealership, D & L Power Sports, who tested it and confirmed that there was nothing wrong with the motorcycle.

Brian Lambert, Cycle Sport’s head mechanic, testified that he had no knowledge of what the service manager told Mr. Ca-zaubon when he first came in with the bike or what parts were ordered for the bike. However, none of the parts ordered by the service manager were ever used on the bike. The only work Mr. Lambert ever did on the bike was between June and August of 2008. At that time, he took the engine out and inspected the rod bearings and crank bearings to make sure there was no damage before putting it all back together. After reassembling the bike, he put a stock exhaust on it because Mr. Cazaubon had removed the exhaust, and then he started it and rode it. He testified that when he rode it, there were no noises, no hesitations, and the bike rode just like it should.

Antonio Scanduro, the service manager for D & L Power Sports, performed a Dynotest on Mr. Cazaubon’s motorcycle at the request of Cycle Sport to find any problems with the motorcycle. He testified that he first did a physical inspection of the bike. He started the bike at idle, listened to it, and everything sounded fine. He then test-drove it in the parking lot in first and second gear, and everything still felt fine. Finally, he put it on a Dyno machine, which allowed him to test the bike at its full potential without endangering a rider or breaking the speed limit on the street. He found nothing at all abnormal with the bike.

The trial court made a finding of fact that Mr. Cazaubon and the Cycle Sport Service Manager looked at the bike when it was first brought in and diagnosed the engine problem. The court also found that Mr. Cazaubon did not race or abuse the motorcycle. Based upon these facts, the trial court concluded that the motorcycle engine had a redhibitory defect. Although a 17trial court’s finding of fact may not be set aside in the absence of manifest error or unless it is clearly wrong, we find the trial court’s conclusion that the engine was defective, based on the evidence before it, to be clearly wrong. There was no evidence offered to prove that anything was ever actually wrong with the engine. Cycle Sport and D & L Power Sports both examined the engine and found nothing wrong. Mr. Cazaubon did not have a mechanic examine the bike. The only evidence he presented was his own testimony that he looked at the bike with the service manager (who did not testify) and knew what was wrong. Finally, Mr. Cazaubon testified at trial that he did not know if there was anything wrong with the bike’s engine. Based upon this, we find that Mr. Cazaubon failed to carry his burden of proof that the bike was defective, and the court was clearly wrong in concluding that the bike had a defective engine.

The trial court also concluded that the motorcycle frame was defective. It is unclear from the testimony presented at trial when or why the frame cracked on the bike. When the crack was initially discovered by Mr. Lambert at Cycle Sport, he did not know whether it had been cracked during the engine removal by over-torquing, but he nonetheless contacted Kawasaki and ordered a new frame. Kawasaki’s phone logs show that Mr. Cazaubon called on May 30, 2008 demanding a replacement motorcycle because Cycle Sport pulled the engine and cracked the frame and he did not think that Cycle Sport was competent enough to replace the frame and he did not want to travel to take the bike to another dealer. Around the same time the crack in the frame was discovered, Kawasaki issued a recall on the frames due to cracking near the welds. Kawasaki sent a representative to Cycle Sport to inspect the frame to attempt to determine whether the cracking was due to the recall or due to over-torquing when the engine was removed. The [ ^Kawasaki representative was unable to say for sure how the frame had been cracked, although he suspected over-torquing due to the location and appearance of the cracks. However, because they could not say for sure what caused the cracking, Kawasaki supplied a brand new frame at no cost, and Cycle Sport replaced the cracked frame with the brand new frame at no cost to Mr. Cazau-bon. At the time this suit was filed, the bike had a brand new frame. No evidence was presented that there was any problem with this new frame. Therefore, it is unclear on what basis the court concluded that the frame on the bike was a redhibi-tory defect. The evidence presented at trial simply does not support the conclusion that the frame is defective. Therefore, the court’s conclusion that the frame is defective is clearly wrong.

Because we have found that the court erred in finding that a redhibitory defect existed, the trial court’s judgment rescinding the sale and awarding damages must be reversed.

CONCLUSION

The judgment appealed from is reversed. Costs of this appeal are assessed to plaintiff, Eric Cazaubon.

REVERSED.

HUGHES, J., concurs.

      . Dane Beagle was fired by Cycle Sport some time after this and was not called to testify by either side at trial.


author: PETTIGREW, J. WELCH, J,

text:
    Karen Granger WILLIAMS and Larry D. Williams, Sr. v. Joseph and Cindy GALOFARO and Farm Bureau Insurance Companies.
    No. 2011 CA 0487.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 9, 2011.

      Rick A. Caballero, Baton Rouge, LA, for Plaintiffs-Appellants Karen Granger Williams and Larry D. Williams, Sr.
    Craig J. Robiehaux, Mandeville, LA, for Defendants-Appellees Joseph and Cindy Galofaro and Farm Bureau Insurance Companies.
    Before PETTIGREW, McCLENDON, and WELCH, JJ.
   PETTIGREW, J.

| gPlaintiffs-appellants, Karen and Larry Williams, appeal the trial court’s judgment, granting a motion for summary judgment filed by defendants-appellees, Joseph and Cindy Galofaro and their insurer, Farm Bureau Casualty Insurance Company (“Farm Bureau”), and dismissing their claims with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

This action arises from an accident that occurred in the home of the Galofaros on December 28, 2007. According to the record, Ms. Williams, the Galofaros’ housekeeper, was cleaning the garden bathtub in the master bathroom when Buddy, the family’s Shitzu puppy, got under foot, causing her to trip and sustain injuries to her arm and shoulder. Ms. Williams and her husband filed suit against the Galofa-ros and their insurer, Farm Bureau, pursuant to La. Civ.Code arts. 2315 and 2321, alleging fault on the part of the Galofaros in the following respects:

a. Failure to provide [Ms. Williams] a safe place to perform the job she was hired to do;
b. Failure to make arrangements to restrain or otherwise prevent their dog from hindering [Ms. Williams] as she went about her work; and
c. Such other acts of negligence that will be learned of during discovery and presented at trial.

In response to the petition for damages, the Galofaros and Farm Bureau (hereinafter “defendants”) filed a motion for summary judgment, asserting that there was no liability on their part based on the undisputed material facts and that they were entitled to summary judgment as a matter of law. In support thereof, defendants submitted the July 28, 2009 deposition of Ms. Williams. Plaintiffs submitted an opposition to the motion for summary judgment, offering a September 27, 2010 affidavit by Ms. Williams to counter defendants’ position.

On October 4, 2010, the trial court heard arguments on the motion for summary judgment. After considering the applicable law and the evidence in the record, the trial court granted defendants’ motion for summary judgment, finding no genuine issue of material fact as to the unreasonable risk of harm posed by the Galofaros’ puppy being | ¿¡underfoot. A judgment in accordance with these findings was signed by the trial court on October 18, 2010, granting defendants’ motion for summary judgment and dismissing plaintiffs’ claims with prejudice. It is from this judgment that plaintiffs have appealed, assigning the following as error: “The trial court committed error in finding there were no material facts in dispute despite the plaintiffs sworn affidavit establishing same.”

SUMMARY JUDGMENT

Summary judgments are reviewed on appeal de novo. Boudreaux v. Vankerkhove, 2007-2555, p. 5 (La.App. 1 Cir. 8/11/08), 993 So.2d 725, 729-730. An appellate court thus asks the same questions as does the trial court 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. Ernest v. Petroleum Service Corp., 2002-2482, p. 3 (La.App. 1 Cir. 11/19/03), 868 So.2d 96, 97, writ denied, 2003-3439 (La.2/20/04), 866 So.2d 830. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966(B).

When a motion for summary judgment is made and supported as provided by law, an adverse party may not rest on the mere allegations or denials of his pleading. His response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, will be rendered against him. La.Code Civ. P. art. 967; Robles v. ExxonMobile, 2002-0854, p. 4 (La.App. 1 Cir. 3/28/03), 844 So.2d 339, 341.

On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require that all essential elements of the adverse party’s claim, action, |4or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La.Code Civ. P. art. 966(C)(2); Janney v. Pearce, 2009-2103, p. 5 (La.App. 1 Cir. 5/7/10), 40 So.3d 285, 288-289, writ denied, 2010-1356 (La.9/24/10), 45 So.3d 1078.

Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Bridgefield Cas. Ins. Co. v. J.E.S., Inc., 2009-0725, p. 4 (La.App. 1 Cir. 10/23/09), 29 So.3d 570, 573.

The law governing claims for damages caused by animals is La. Civ.Code art. 2321, which after its amendment by 1996 La. Acts, 1st Ex.Sess., No. 1, § 1, provides:

The owner of an animal is answerable for the damage caused by the animal. However, he is answerable for the damage only upon a showing that he knew or, in the exercise of reasonable care, should have known that his animal’s behavior would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nonetheless, the owner of a dog is strictly liable for damages for injuries to persons or property caused by the dog and which the owner could have pre vented and which did not result from, the injured person’s provocation of the dog. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate ease. [Emphasis added.]

In the case of Pepper v. Triplet, 2003-0619 (La.1/21/04), 864 So.2d 181, the Louisiana Supreme Court reviewed the history of Article 2321 and significant jurisprudence interpreting its provisions. It noted that in Holland v. Buckley, 305 So.2d 113, 119 (La.1974), the court interpreted the version of Article 2321 then in effect and concluded that the owner of the animal was presumed to be at fault and [scould only exculpate himself by proving that the harm resulted from some independent cause not imputable to him. Applying that principle, the Holland court imposed liability on the owner of a dog that had bitten the plaintiff, despite the lack of any evidence of the owner’s fault, because the owner did not rebut the presumption of fault created by the injury caused by the dog. Pepper, 2003-0619 at 8-9, 864 So.2d at 188.

In a later case, Boyer v. Seal, 553 So.2d 827, 834 (La.1989), the court backed away from the almost absolute liability of Holland by applying the unreasonable risk of harm principle to animals, which posits that the damage must have been caused by a vice or aspect of the thing that creates an unreasonable risk of harm to others, citing the strict liability provisions of La. Civ.Code art. 2317, as interpreted by Loescher v. Parr, 324 So.2d 441, 446-449 (La.1976). The Boyer court stated, “Subsequent to Loescher, this court has not allowed recovery for damage by a domestic animal in the absence of proof that the injury resulted from an unreasonable risk of harm created by the animal.” Boyer, 553 So.2d at 833. The Boyer court noted that “the judicial process involved in deciding whether a thing under garde posed an unreasonable risk of harm is similar to that of taking into account all of the social, moral, economic and other considerations as would a legislator regulating the matter.” Boyer, 553 So.2d at 834-835.

The owner of an animal is answerable for the damage he has caused; but if the animal had been lost, or had strayed more than a day, he may discharge himself from this responsibility by abandoning him to the person who has sustained the injury; except where the master has turned loose a dangerous or noxious animal, for then he must pay for all the harm done, without being allowed to make the abandonment.

In Boyer, the plaintiff was visiting in her daughter’s home when her daughter’s cat rubbed up against, ran, or walked between the plaintiffs legs, causing her to lose her balance and fall. The court held that, as a policy matter, the behavior of the cat in rubbing the legs of a visitor in its home or accidentally getting in the way or underfoot did not present an unreasonable risk of harm. The court reasoned that the cat’s behavior was innocuous, especially when compared with other cat-related risks widely | (;tolerated by our society. Further, the court found that the likelihood of injury resulting from this type of behavior multiplied by the gravity of the harm threatened by it did not outweigh the social utility of keeping a cat as a pet in the home where it may be exposed to visiting relatives and guests. The court also held that the daughter was not guilty of negligent behavior which caused her mother’s injuries. Boyer, 553 So.2d at 835. Reviewing this decision in the Pepper case, the court stated:

Essentially, then, Boyer applied the unreasonable risk of harm principle to animals in order to limit strict liability against their owners because of the competing social policy that the owner of an animal should not be required to insure against all risks and because the court had been applying the same or similar principle to things and buildings.

Pepper, 2003-0619 at 11, 864 So.2d at 190.

The Pepper court then analyzed the 1996 amendment to Article 2321 and concluded that, although the legislature added the phrase, “which the owner could have prevented,” and did not include the term “unreasonable risk of harm,” the court did not read that language “as an expansion of liability toward a superstrict or absolute standard” to be applied when a dog causes injury. Pepper, 2003-0619 at 18-19, 864 So.2d at 194. The court concluded that the amendment effected no practical change in how the courts should apply Article 2321 to dog claims, stating:

[T]he legislature’s 1996 amendment of Article 2321 simply changes the law to make Holland and the strict liability doctrine no longer applicable to animals other than dogs. Furthermore, as we explained in Boyer, the unreasonable risk of harm principle represented, in effect, a limitation, albeit perhaps a partially jurisprudential one, upon the reach of strict liability, so the owner of an animal is not required to insure against all risk or loss. We detect no legislative retreat from that principle in the 1996 amendment to Article 2321.

Pepper, 2003-0619 at 20, 864 So.2d at 195. The court further summarized its conclusions concerning the elements of a claim under Article 2321 as follows:

[T]o establish a claim in strict liability against a dog owner under [La. Civ. Code art. 2321] as amended in 1996, the plaintiff must prove that his person or property was damaged by the owner’s dog, that the injuries could have been prevented by the owner, and that the .injuries did not result from the injured person’s provocation of the dog. We hold that, to establish that the owner could have prevented the injuries under Article 2321, the plaintiff must show the dog presented an unreasonable risk of harm.

17Pepper, 2003-0619 at 1-2, 864 So.2d at 184. The criterion for determining whether a defendant has created or maintained an unreasonable risk of harm is a balancing of claims and interests, a weighing of the risk and gravity of harm, and a consideration of individual and societal rights and obligations. Pepper, 2003-0619 at 21, 864 So.2d at 195-196; see also Thibodeaux v. Krouse, 2007-2557, p. 4 (La.App. 1 Cir. 6/6/08), 991 So.2d 1126, 1129.

In the Pepper case, which involved a man entering his neighbor’s fenced backyard where the neighbor’s dog was allowed to roam free, the court found that “until the plaintiff intentionally and knowingly entered the defendant’s backyard without authority, the defendant’s dog did not present an unreasonable risk of harm to the plaintiff or the public.” Pepper, 2003-0619 at 24, 864 So.2d at 197 (emphasis added). The court found that the plaintiffs act of entering the neighbor’s yard without the neighbor’s permission and while the neighbor was away from home amounted to an act of civil trespass, defined as “the unlawful physical invasion of the property or possession of another.” Moreover, the plaintiff could be considered a “trespasser,” defined as “one who goes upon the property of another without the other’s consent.” Pepper, 2003-0619 at 23, 864 So.2d at 197. The court therefore found that the neighbor was not strictly liable for the injuries sustained by the plaintiff when he was bitten by the neighbor’s dog while in the neighbor’s fenced backyard retrieving his son’s ball. Pepper, 2003-0619 at 25, 864 So.2d at 198.

On appeal, plaintiffs argue that the Galofaros were specifically warned and knew that Buddy was a danger to Ms. Williams. Plaintiffs maintain that the Ga-lofaros knew Buddy was “causing trouble for [Ms. Williams] and because of its boisterous nature could cause her harm.” Thus, plaintiffs argue the Galofaros are strictly liable for the injuries caused to Ms. Williams “since they knew the dog was unreasonably dangerous under these facts and [Ms. Williams’] injuries could have been prevented.” In the alternative, plaintiffs contend the Galofaros were negligent for not allowing Ms. Williams |8to lock Buddy up while she was working. Ms. Williams asserts that “she was not allowed to lock the dog up under penalty of losing her jobs.”

In response to these arguments, defendants maintain there is no basis from the evidence to conclude that the dog presented an unreasonable risk of harm to Ms. Williams who knew of the dog’s propensities and was in the best position to exercise control over her working conditions. Moreover, defendants argue that “[a]l-though [Ms. Williams] seems to make much about the contention that the Galofa-ros would be upset if their dog was locked up, it is certainly obvious to anyone looking at the facts objectively, that if the dog was a nuisance, [Ms. Williams] merely needed to close the door in the room she was working to eliminate that problem.”

In the instant case, defendants submitted the deposition of Ms. Williams in support of their motion for summary judgment. Ms. Williams testified in her deposition that she had been employed by the Galofaros for approximately two years. About one year prior to the date of the accident in question, the Galofaros brought home a Shitzu puppy named Buddy. According to Ms. Williams, the Galofaros had instructed her that if Buddy was bothering her while she was cleaning, she was to either put him in the guest bathroom or spank him. Ms. Williams testified that there was a “make-shift fence” in the guest bathroom where she could put Buddy. When asked if she had ever put Buddy in the guest bathroom while she was cleaning, Ms. Williams indicated that she had only done it on one occasion because she felt like the Galofaros “didn’t like it” when she did.

She described the one incident when she had put Buddy in the guest bathroom, recalling how the Galofaros’ son came home that day and asked where Buddy was. Ms. Williams testified that after she told him she put Buddy in the guest bathroom, she “could just tell that it wasn’t maybe a good choice for [her] to put the dog in the bathroom that day.” Shortly after the Galofaros’ son left the house, Ms. Galofaro phoned and asked if |flBuddy was “being bad.” Ms. Williams responded that he was, telling Ms. Galofaro that she was trying to do her work and that Buddy had been “tearing up the plant” and “going in and out [of] the mop bucket.” Ms. Williams explained to Ms. Galofaro that she did not whip Buddy, indicating that she would never hit a dog, but that she was there to clean so she put Buddy in the guest bathroom. Ms. Williams further testified as follows: ‘Well, actually she called to let him back out because I figured, you know, here we go. This is a problem now.”

When asked if there were any other discussions with the Galofaros about Buddy causing a hindrance to her work, Ms. Williams stated:

Well, one day I was in the ... master bath, the vacuum cleaner had broke. I was on the floor trying to take the belt off and ... here was Buddy_ And then that evening. I was telling [Ms. Galofaro] but not in a mean way just trying to explain ... I didn’t need him there, but it wasn’t a big deal. You know, it wasn’t a big deal. That was their baby and ... then I just quit telling them anything because I needed my jobs.

Ms. Williams indicated that even prior to the accident in question, Buddy was a nuisance and hindrance to her work. She testified that he would get underneath the blankets when she was trying to change the beds and that one morning, she almost stepped on him when he got underneath a comforter on the floor.

Concerning the day of the accident, Ms. Williams testified in her deposition that she was cleaning the garden bathtub in the master bathroom and that she was bent over, wiping the back of the bathtub. With regard to how she was injured, she stated, “as I was wiping, I went to step, and when I step, I heard him scream. I went down. My arm slid around the ... whole back edge of the tub all the way up to the faucet and went all the way back.” According to Ms. Williams, she had been cleaning for approximately three hours before the accident and during that time, Buddy had not been a problem. She remembered seeing Buddy playing with his toys in the dining room and the living room during the morning. Ms. Williams testified that Buddy was not in the habit of following her around from room to room as she was cleaning and that Buddy was not in the master bathroom when she went in to do her work.

Imln response to the motion for summary judgment, plaintiffs submitted the affidavit of Ms. Williams wherein she emphatically declared that she would not have fallen if the Galofaros would have allowed her to lock Buddy in the guest bathroom while she worked. She also stated that prior to the date of the accident, Buddy had interfered with her work, was a hin-di'ance to her, and was a danger to her. Ms. Williams also recounted the incident involving the one time she had put Buddy in the guest bathroom:

Prior to the date of the accident, I put the dog in the guest bathroom to keep him from getting under foot and interfering with my work. On that same day ... the [Galofaros’] son, came home. When [he] found out I had put the dog in the bathroom, he became upset. Once [he] left, [Ms. Galofaro] called and questioned me about why the dog was in the bathroom.... I received the message that I was to let the dog out of the bathroom if I wished to keep my employment. I, therefore, did not lock the dog up while I was at work.... As a result of my conversation with her, [Ms. Galofaro] knew the dog was a danger to me, as it was following me around and getting under foot.

As previously discussed, plaintiffs bear the burden of proving by a preponderance of the evidence that Buddy caused Ms. Williams’ injuries, that the injuries could have been prevented by the Galofaros, and that the injuries did not result from Ms. Williams’ provocation of the dog. To show whether the Galofaros could have prevented the injury, plaintiffs must establish that Buddy posed an unreasonable risk of harm. See Pepper, supra. We conclude that based on the facts and circumstances herein, the trial court did not err in determining that plaintiffs could not make a showing that Buddy presented an unreasonable risk of harm to Ms. Williams.

Ms. Williams conceded that she had been instructed by the Galofaros to either spank Buddy or put him in the guest bathroom if he was ever bothering her while she was working. Even though Ms. Williams asserts that it was her perception that the Galofaros would be unhappy if she locked Buddy up and that she could possibly lose her job for doing so, Ms. Williams was well aware of Buddy’s playful propensities prior to the accident and had the option to close the door to the room she was working in to keep Buddy from interfering with her work. Yet she failed to do so. The Louisiana Supreme Court has confirmed that the legislative fact consideration and risk-utility balancing tests are valid approaches to determining whether a person or thing under garde poses an |, unreasonable risk of harm to others. We do not believe that a legislator or other objective policy maker regulating this case, after weighing all social, economic, moral, and other considerations, would decide that the behavior of Buddy in accidentally getting in the way or underfoot is an unreasonable risk of harm. See Boyer, 553 So.2d at 835. Further, it does not appear that the likelihood of injury resulting from such puppy-like behavior multiplied by the gravity of the harm threatened by it would outweigh the utility of keeping a dog as a pet in a home where it may be displayed and exposed to visiting relatives and guests. Id. Accordingly, summary judgment was appropriate.

CONCLUSION

For the above and foregoing reasons, we affirm the judgment of the trial court granting summary judgment in favor of defendants, Joseph and Cindy Galofaro and Farm Bureau Casualty Insurance Company, and dismissing, with prejudice, the claims of plaintiffs, Karen and Larry Williams. All costs associated with this appeal are assessed against Karen and Larry Williams.

AFFIRMED.

WELCH, J., dissents and assigns reasons.

WELCH, J,

dissenting.

LI respectfully dissent. In its motion for summary judgment, Farm Bureau challenged Ms. Williams’ ability to demonstrate that Buddy presented an unreasonable risk of harm to her. Farm Bureau relied on Ms. Williams’ deposition testimony in which she admitted that she was told by Buddy’s owners to secure Buddy in the bathroom or to spank the dog if he bothered her while she was working. In Ms. Williams’ deposition and affidavit, she explained that she did not believe locking Buddy in the bathroom all day, while she worked for 8-9 hours in the Galofaro home, was a viable option. According to Ms. Williams, on the one occasion when she did lock Buddy in the bathroom, the owners became upset, and she received the message that she was not to lock the dog in the bathroom all day while she worked. She also stated that she informed Ms. Galofaro on at least two occasions that Buddy was interfering with her work and that she just decided to quit complaining because Buddy was “their baby” and because she needed her jobs.

In ruling on the motion for summary judgment, we must accept as true Ms. Williams’ statements that she complained to the owners that Buddy was interfering with her work and that Ms. Williams did not believe she could remedy that situation by locking Buddy in the bathroom all day because of the prior conduct of Buddy’s owners. Whether Buddy presented an unreasonable danger to Ms. |2Williams under these circumstances is a factual question, the resolution of which is not appropriate for summary judgment. Therefore, I would reverse the summary judgment and remand for a trial on the merits.

      . Before it was amended in 1996, Article 2321 stated:

      . Ms. Williams testified that she not only cleaned the Galofaros’ home, but that she also provided housekeeping services for the Galo-faros’ rental homes and the homes of other Galofaro family members.

      . Ms. Williams stated that she also provided housekeeping services for the Galofaro’s rental homes.


author: PETTIGREW, J. McClendon, j.,

text:
    Thomas GOODIN v. SECRETARY, DEPARTMENT OF CORRECTIONS; Tim Wilkerson, Warden, Winn Correctional Center; Captain Coleman, Ms. Powell, Jane Doe and Lieutenant Carpenter.
    No. 2011 CA 0673.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 9, 2011.

      Thomas Goodin, Keithville, LA, In Proper Person, Plaintiff-Appellee.
    Jonathan R. Vining, Baton Rouge, LA, for Defendant-Appellant, Louisiana Department of Public Safety and Corrections.
    Before PETTIGREW, McCLENDON, and WELCH, JJ.
   PETTIGREW, J.

12In this case, petitioner, Thomas Goo-din, an inmate in the custody of the Department of Public Safety and Corrections (“DPSC”), filed a petition for judicial review pursuant to the Corrections Administrative Remedy Procedure (“CARP”), La. R.S. 15:1171, et seq., in the 19th Judicial District Court, seeking review of the denial of his appeals under Disciplinary Board Appeal Nos. WNC-2007-274, WNC-2007-275, WNC-2007-276, and WNC-2007-277. The action was initially referred to a commissioner for review pursuant to La. R.S. 15:1188, who found merit to petitioner’s claims. Following its de novo review of the record, the district court adopted the commissioner’s recommendation, signing a judgment on February 1, 2011, in accordance with its findings. Among other things, the February 1, 2011 judgment denied DPSC’s request to proceed with the appeal of only a single disciplinary conviction rather than the three that were considered, reversed petitioner’s disciplinary convictions under Disciplinary Board Appeal Nos. WNC-2007-274, WNC-2007-275, and WNC-2007-276, and reversed the penalties of the loss of good time imposed by DPSC in those three disciplinary matters. For the reasons that follow, we affirm in part, vacate in part, and remand with instructions.

FACTS AND PROCEDURAL HISTORY

In the commissioner’s recommendation, he summarizes the incidents leading up to petitioner’s disciplinary actions as follows:

According to the incident report charging the petitioner with his Contraband violation, the petitioner approached a corrections officer and told the officer he needed the officer to pass $200 to a person the officer [¡¡would meet outside the institution. The petitioner informed the officer there would be trouble if the officer declined. The $200 was confiscated as contraband by the officer contacted by the petitioner. The petitioner was informed he could face criminal charges in relation to that incident. The record indicates the petitioner’s Coercion violation arose out of the same incident as the contraband charge. The petitioner asked about the officer’s wife and told him he knew the officer’s home telephone number nine days prior to the incident. The incident report indicates the petitioner’s Defiance charge arose out of allegations that on October 2, 2007 the petitioner called the corrections officer at home and asked him if he had “seen the truck”.

Under WNC-2007-274, petitioner was convicted of violating Rule No. 1, contraband, resulting in a sentence of forfeiture of 180 days of good time and 10 days of detention. Petitioner was convicted of violating Rule No. 30H, coercion, under WNC-2007-275 and lost 180 days of good time in that matter. Under WNC-2007-276, petitioner was convicted of violating Rule No. 3, defiance. In that matter, petitioner lost 160 days of good time and was placed in detention for 10 days.

In his appeals below, petitioner argued that he should have been allowed outside counsel at his disciplinary hearing, that he should have been allowed to cross examine his accuser, and that he should have been given a written summary of the evidence against him and reasons for judgment. DPSC denied petitioner’s appeals on all charges, finding no reason to overturn the penalties imposed by the Disciplinary Board (“Board”). With regard to his request for outside counsel, Warden Tim Wilkinson advised petitioner that DPSC’s rules clearly state “the only time the inmate has a right to retain outside counsel is when the alleged violation is one for which the inmate could also be charged in a criminal court,” and because “[n]one of the offenses are chargeable in criminal court,” petitioner’s “rights were not violated in this instance.” Concerning the allegation that he was not allowed to confront his accuser, Warden Wilkinson noted as follows: “The only time you are allowed to face your accuser is when the information provided within the disciplinary report is based solely on information obtained from confidential informants. In this case, the information was first hand from the officers and Cl’s were not used.” Regarding the summary of evidence and reasons for judgment, Warden Wilkinson stated: ‘You received a copy of the ... completed disciplinary report. To ^present evidence such as the money or the Pringles cans w/ marijuana is detrimental to the security of the facility [and] therefore not present at the hearing.”

On December 23, 2010, the commissioner issued his recommendation that DPSC’s request to proceed with an appeal of only a single disciplinary conviction should be denied. The commissioner further found that DPSC did not abide by the applicable disciplinary rules and regulations regarding private counsel in disciplinary matters and that petitioner was not afforded due process at his disciplinary hearing. Thus, the commissioner recommended that petitioner’s convictions and the loss of good time imposed in the three disciplinary matters at issue be reversed. Following a de novo review of the record, the district court adopted the commissioner’s report as its reasons, maintained the decision by the commissioner, and reversed petitioner’s disciplinary convictions under WNC-2007-274, WNC-2007-275, and WNC-2007-276, as well as the loss of good time imposed in all three matters. It is from this judgment that DPSC has appealed, arguing in a single assignment of error that it was legal error for the district court to allow review of multiple administrative records within a single petition for judicial review.

LAW AND ANALYSIS

Enacted in 1985, CARP authorized DPSC to adopt and implement an administrative remedy procedure for receiving, hearing, and disposing of any and all inmate complaints and grievances. La. R.S. 15:1171 and 15:1172. Judicial review of an adverse decision by DPSC is provided for in La. R.S. 15:1177. On review of the agency’s decision, the district court functions as an appellate court. Owens v. Stalder, 2006-1120, p. 4 (La.App. 1 Cir. 6/8/07), 965 So.2d 886, 888. Its review shall be confined to the record and shall be limited to the issues presented in the petition for review and the administrative remedy request filed at the agency level. La. R.S. 15:1177(A)(5). The court may affirm the decision of the agency or remand the case for further proceedings, or order that additional evidence be taken. La. R.S. 15:1177(A)(8). The court may reverse or modify the administrative decision only if substantial rights of the appellant have been prejudiced because the administrative Ififindings, inferences, conclusions, or decisions are (1) in violation of constitutional or statutory provisions, (2) in excess of the statutory authority of the agency, (3) made upon unlawful procedure, (4) affected by other error of law, (5) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion, or (6) manifestly erroneous in view of the reliable, probative and substantial evidence on the whole record. La. R.S. 15:1177(A)(9).

On review of the district court’s judgment in a suit for judicial review under La. R.S. 15:1177, no deference is owed by the court of appeal to the factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. McCoy v. Stalder, 99-1747, p. 6 (La.App. 1 Cir. 9/22/00), 770 So.2d 447, 450-451.

Citing this court’s decision in Lightfoot v. Stalder, 97-2626 (La.App. 1 Cir. 12/28/98), 727 So.2d 553, DPSC asserts on appeal that the district court “committed a clear error of law in allowing the review of [four] separate and distinct disciplinary reports within a single petition for judicial review.” DPSC argues that at no time has this court “ever suggested that an inmate could seek l’eview of multiple administrative records within a single lawsuit for any reason.” Rather, DPSC maintains that this court “has clearly stated that a petitioner (as in this case) remains free to seek judicial review of each administrative record; however, each decision must be reviewed in a separate suit.” Lightfoot, 97-2626 at 3, 727 So.2d at 555.

In Lightfoot, this court affirmed the judgment of the district court dismissing the prisoner’s suit for his failure to designate which of six administrative remedy procedures he wanted the court to review in that particular suit. In affirming the judgment, this court stated:

Allowing an offender to request review of more than one adverse decision in the same petition would call into question timeliness issues and unnecessarily complicate the reviewing court’s role by having several records transmitted for review. This would allow a multitude of cross referencing issues, facts and actions, which would not allow for orderly disposition of the suit.

Lightfoot, 97-2626 at 3, 727 So.2d at 555.

| ^According to the record below, the commissioner had previously denied DPSC’s request to sever petitioner’s disciplinary convictions for purposes of judicial review. DPSC raised a request for reconsideration of said ruling. In recommending that DPSC’s request for reconsideration be denied, the commissioner noted that petitioner was convicted of the three offenses at issue in a single disciplinary hearing, filed an appeal of all three convictions raising the same issues relative to all three convictions, and received a denial of appeal by DPSC in each case entered all on the same day, February 29, 2008. In attempt to distinguish Lightfoot from this case, the commissioner concluded that “any concerns regarding appeals of unrelated multiple disciplinary matters and the possible confusion that could arise when a single appeal is sought on multiple final agency decisions rendered on different dates is not at issue in this matter.” Thus, the commissioner found that based on the facts of this case, Lightfoot was distinguishable.

We disagree. While we acknowledge that in this case DPSC did in fact conduct a single disciplinary hearing in conjunction with petitioner’s multiple disciplinary violations, the fact remains that petitioner was charged separately with three rule violations stemming from three different incidents. The district court’s decision to allow review of multiple disciplinary board appeals in a single petition for judicial review was clear error and in direct contravention of our holding in Lightfoot. Petitioner should have sought review of each disciplinary board appeal separately. However, our analysis does not end here.

The commissioner found, and the district court agreed, that DPSC had not followed its own disciplinary rules and regulations regarding petitioner’s right to counsel during the disciplinary proceedings below. The commissioner summarized this issue as follows:

The Disciplinary Rules of [DPSC] provide that an inmate has a right to outside, retained counsel only when the alleged violation is one for which the inmate could also be charged in a criminal court. The petitioner was informed on the face of his incident report for the contraband charge that he faced possible street charges. The record filed in this matter indicates the petitioner submitted a written request to have private counsel appear at his disciplinary hearing and his request was denied. In 17the appeal filed by retained counsel, the attorney contends she attempted to attend the disciplinary hearing, but the date was moved up and she was not allowed to attend the disciplinary hearing. The petitioner contends his due process rights were prejudiced because he relied on counsel to contact witnesses and present his defense at his disciplinary hearing.
This Commissioner notes that the regulations of [DPSC] do permit an inmate, who is facing possible criminal charges arising out of a disciplinary incident, to retain private counsel to represent him at a disciplinary hearing. In this matter the petitioner’s disciplinary charges arose out of a scheme to introduce contraband into a penal institution. The disciplinary record indicates that marijuana was discovered in potato chip canisters picked up by the reporting officer. The record does not reveal any details regarding where the canisters were obtained or the location of the canisters when the marijuana was discovered. The record indicates that the petitioner was subject to criminal charges in this matter, that [DPSC] was notified he retained private counsel and that counsel was not allowed to participate in the disciplinary proceedings. The record supports the finding that [DPSC] did not follow their own disciplinary rules and regulations in this matter.
This Commissioner recognized that all inmates who face disciplinary charges do not have a right to counsel and that due process does not require that an inmate be allowed to retain outside counsel in every disciplinary hearing where he is subject to a loss of good time. However, in this particular case this Commissioner finds the petitioner’s due process rights were prejudiced when his attorney was not allowed to appear at his disciplinary hearing.

We agree with the commissioner’s analysis concerning petitioner’s right to counsel at his disciplinary hearing. According to the disciplinary report from the October 1, 2007 incident wherein petitioner was charged with the contraband violation, petitioner was “informed of possible street charges.” At the October 18, 2010 hearing before the commissioner, the attorney for DPSC acknowledged that their policies do permit an inmate to retain outside counsel if he is subject to criminal charges. However, he argued that the policy was merely “misinterpreted” by the warden and that it was basically harmless error for petitioner’s disciplinary hearing to proceed without his attorney present. DPSC counsel stated as follows:

[T]he first report that was included that dealt with the cash that was handed over and that [petitioner] was convicted of, our policy does state ... that if it’s a matter for which charges could be brought, then the defendant is allowed to have outside counsel present, if outside counsel so chooses to be.
The response was not entirely correct on that where they — it was interpreted by the warden as saying, well, charges weren’t brought. Charges certainly could have been brought because ... possession of cash |sor currency within a correctional facility is certainly contraband under the law....
I think the question for this court would be, sitting as an appellate court, is whether ... a mistake made in that area would have changed the ultimate outcome and whether that’s something that would be significant enough to be reversible error....
[T]he question for this court is whether it would have made any difference. And with the evidence there, he was convicted.... And I don’t think that [petitioner] can argue that having a lawyer there would have made any difference and that that constitutes reversible error, or whatever the terminology would be, but an abuse of discretion by [DPSC] that would allow him to have this decision overturned by this court.
And again, the only question for this court would be whether ... it would have made any difference on the basis of the evidence that was submitted just having a lawyer present, just because we misinterpreted the policy. I mean, it’s as simple as that. I don’t disagree with him that the policy says he should have been able to have one.

We find the argument by DPSC’s counsel to be unpersuasive. It is clear from the record that petitioner faced possible criminal charges for the contraband rule violation. The fact that he was never criminally charged is of no moment to the issue of whether he was entitled to retain outside counsel for the disciplinary hearing concerning same. Counsel for DPSC even admitted as much. Based on the facts and circumstances of this case, petitioner’s due process rights were prejudiced. Petitioner should have been allowed to retain private counsel for his hearing. Thus, the remaining portion of the February 1, 2011 judgment is vacated, and the matter is remanded to the district court with instructions that, pursuant to La. R.S. 15:1177(A)(8), the district court vacate the disciplinary penalties imposed on petitioner in WNC-2007-274, WNC-2007-275, and WNC-2007-276, and remand the matter to the Board for a new hearing on petitioner’s disciplinary violations in WNC-2007-274, WNC-2007-275, and WNC-2007-276, at which time petitioner shall be allowed the opportunity to retain private counsel should he so desire.

| .CONCLUSION

For the above and foregoing reasons, we affirm that portion of the February 1, 2011 judgment that dismissed petitioner’s request for judicial review of Disciplinary Board Appeal No. WNC-2007-277 based on the finding that petitioner suffered no prejudice to a substantial right. We vacate the remainder of the February 1, 2011 judgment and remand the matter to the district court with instructions that, pursuant to La. R.S. 15:1177(A)(8), the district court vacate the disciplinary penalties imposed on petitioner in WNC-2007-274, WNC-2007-275, and WNC-2007-276, and remand the matter to the Board for a new hearing on petitioner’s disciplinary violations in WNC-2007-274, WNC-2007-275, and WNC-2007-276, at which time petitioner shall be allowed the opportunity to retain private counsel should he so desii*e. Appeal costs in the amount of $801.50 are assessed equally between petitioner, Thomas Goodin, and the Department of Public Safety and Corrections.

AFFIRMED IN PART; VACATED IN PART; REMANDED WITH INSTRUCTIONS.

WELCH, J., concurs in result.

McCLENDON, J., concurs and assigns reasons.

McClendon, j.,

concurs.

|,I concur in the result reached by the majority.

      . We note, as did the commissioner and the district court below, that under Disciplinary Board Appeal No. WNC-2007-277, petitioner lost no good time as a result of the penalties imposed. Pursuant to La. R.S. 15:1177(A)(9), the reviewing court can only consider claims where a substantial right has been prejudiced. Thus, we affirm that portion of the district court’s February 1, 2011 judgment that dismissed petitioner’s request for judicial review of WNC-2007-277 based on a finding that petitioner suffered no prejudice to a substantial right. Accordingly, the report will focus on the remaining three disciplinary appeals filed by petitioner.

      . The offices of commissioner of the 19th Judicial District Court were created by La. R.S. 13:711 to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. La. R.S. 13:713(A). The district judge "may accept, reject, or modify in whole or in part the findings or recommendations made by the commissioner and also may receive further evidence or recommit the matter to the commissioner with instructions.” La. R.S. 13:713(0(5).

      . Pursuant to La.Code Civ. P. art. 2164, an appellate court can render any judgment that is just, legal, and proper upon the record on appeal.


author: PARRO, J.

text:
    Barbaro MARTINEZ v. Robert TANNER and Ivy Morris.

    No. 2011 CA 0692.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 9, 2011.

      Barbara Martinez, Angie, LA, Plaintiff-Appellant, In Proper Person.
    Debra A. Rutledge, Deputy General Counsel, Louisiana Department of Public, Safety and Corrections, Baton Rouge, LA, for Defendant-Appellee, James M. Le-Blanc, Secretary Louisiana Department of Public Safety and Corrections.
    Before CARTER, C.J., PARRO, and HIGGINBOTHAM, JJ.

      . Although the petition names defendants as shown in the suit caption, the only proper party defendant is the Louisiana Department of Public Safety and Corrections. See LSA-R.S. 15:1177(A)(1)(b).

   PARRO, J.

12Barbaro Martinez, an inmate in the custody of the Louisiana Department of Public Safety and Corrections (DPSC), appeals a judgment that affirmed DPSC’s final decision in an administrative remedy procedure and dismissed his petition for judicial review of that decision. We affirm the judgment.

BACKGROUND

Martinez filed a petition for judicial review of the final agency decision of DPSC in Administrative Remedy Procedure (ARP) No. RCC 2009-242, in which he challenged DPSC’s computation of his “good time” eligibility. He contends that he signed a “Good Time Rate Option and Approval Form” on September 3, 1992, by which he opted to receive diminution of sentence, known as “good time,” at the rate of thirty days for every thirty days in actual custody, pursuant to LSA-R.S. 15:571.3. By signing the agreement, Martinez also acknowledged that he might fail to earn good time through disciplinary actions.

At the time Martinez signed the agreement, forfeiture of good time could not exceed thirty days, which was the maximum number of days allowable for any one month of time served. See former LSA-R.S. 15:571.4(B)(3), as amended by Act 138. In 1995, LSA-R.S. 15:571.4(B) was amended to allow forfeiture of good time up to 180 days for each disciplinary violation. See 1995 La. Acts, No. 980, § 1. Following this amendment, Martinez incurred sanctions in numerous disciplinary actions for which DPSC imposed forfeitures of more than 30 days per incident. On May 17, 2009, Martinez requested an ARP, pursuant to LSA-R.S. 15:1171, contending that DPSC’s retroactive application of the amended good time provisions constituted a breach of contract and an unconstitutional ex post facto application of law, because the forfeiture of more than thirty days of good time credit per incident exceeded the maximum sanction that could have been imposed when he signed the agreement in 1992.

1 sDPSC reviewed his ARP according to the procedures provided by law and denied his request for relief at each step. Martinez then filed his petition for judicial review in the Nineteenth Judicial District Court (19th JDC); it was assigned to a commissioner for evaluation and to make a recommendation to the district court judge. DPSC filed a response to his petition and attached the entire administrative record. The commissioner reviewed the record and determined that, based on applicable law, the DPSC decision should be affirmed and Martinez’s petition for judicial review should be dismissed. On February 8, 2011, after a de novo review of the record and the commissioner’s recommendation, the district court judge signed a judgment incorporating the commissioner’s recommendation. Martinez then appealed to this court, presenting the same arguments concerning breach of contract and unconstitutional ex post facto application of the law.

DISCUSSION

As noted by the commissioner in his report to the district court judge, this court has previously addressed and answered the question of whether Martinez’s entry into the good time credits program constituted a contract with DPSC that could not be subsequently altered by legislative changes. See Bancroft v. Louisiana Dep’t of Corr., 93-1135 (La.App. 1st Cir.4/8/94), 635 So.2d 738, 741. In Bancroft, the inmate argued that entry into the good time credits program constituted a contract with DPSC, such that he was not subject to parole conditions under later-enacted LSA-R.S. 15:571.5 upon his early release under diminution of sentence. Citing State ex rel. Bickman v. Dees, 367 So.2d 283, 291 (La.1978), this court held that the law in effect at the time of the inmate’s release governs the terms of his release, rather than the law in effect at the time of the commission of the offense or in effect at the time of his entry into the good time credits program. Bancroft, 635 So.2d at 741. The supreme 14court had stated in the Bickman case, which dealt with a parole situation, that when the provisions of law have changed before the inmate’s release on parole, then:

inmates were or are put on notice by the wording of the statute that should they violate a condition such that parole is revoked and they are returned to the institution, they will as a consequence thereof forfeit good time credit. Thus the date of parole, rather than the date of the commission of the offense, triggers the application of the forfeiture provisions.

Bickman, 367 So.2d at 291. Similarly, Martinez was put on notice by the amended wording of LSA-R.S. 15:571.4 that if he violated prison rules and was disciplined with a forfeiture of good time credits, the forfeiture provisions in effect at the time of his violation would apply. See also Kozlowicz v. State, Dep’t of Pub. Safety & Corr., 08-1806 (La.App. 1st Cir.3/27/09), 9 So.3d 1000, 1007. Based on this analysis, we conclude that application of the amended good time forfeiture provisions in this case was not a breach of contract.

For the same reason, the application of the amended good time forfeiture provisions does not violate the constitutional prohibition of ex post facto application of laws. Article I, § 10 of the United States Constitution and Article I, § 28 of the Louisiana Constitution prohibit applying criminal laws ex post facto. In Williams v. Creed, 07-0614 (La.App. 1st Cir.12/21/07), 978 So.2d 419, 425, writ denied, 08-0438 (La.10/2/09), 18 So.3d 111, this court discussed the analysis to be used when evaluating a claim of an ex post facto violation, stating:

After [State ex rel. Olivieri v. State, 00-0172 (La.2/21/01), 779 So.2d 735, cert. denied, 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730 (2001)], the only relevant issues regarding a legislative change are “whether any such change alters the definition of criminal conduct or increases the penalty by which the crime is punishable.” Olivieri, 779 So.2d at 744. In other words, in a post-sentence context, once a sentence has been imposed on a defendant, any change in the law that later occurs cannot be applied to that defendant to increase that sentence or penalty. Anything other than or less than this is not protected by the ex post facto clauses in the United States and Louisiana Constitutions.

In the matter before us, as in Williams, the definition of the criminal conduct committed by Martinez was not changed by the amendment to the good time forfeiture statute that occurred after he committed the crimes for which he was convicted and sentenced. RNor did the application of the amended versions of the good time forfeiture law increase the penalty by which his crime was punishable. Therefore, the application of the amended good time forfeiture provisions to Martinez did not violate the ex post facto provisions of the Louisiana and United States Constitutions.

CONCLUSION

Based on the above analysis, we affirm the February 8, 2011 judgment of the district court. All costs of this appeal are assessed to Barbaro Martinez.

AFFIRMED.

      . The computation of "good time” credit is set out in LSA-R.S. 15:571.3, which has been amended numerous times since its enactment. One of those amendments, 1991 La. Acts, No. 138, § 1 (Act 138), effective January 31, 1992, provided that prisoners could earn diminution of sentence, to be known as "good time,” at the rate of thirty days of good time for each thirty days served in actual custody.

      . The office of commissioner of the 19th JDC was created by LSA-R.S. 13:711 to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. The commissioner’s written findings and recommendations are submitted to a district court judge, who may accept, reject, or modify them. LSA-R.S. 13:713(0(5).

      . See LSA-R.S. 15:1177(A)(10).