author: GAIDRY, J.

text:
    Leroy THOMAS, et ux v. COMFORT CENTER OF MONROE, LA, INC., d/b/a One Hour Air Conditioning & Heating, et al.
    No. 2010 CA 0494.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 29, 2010.

      Donald G. Cave, Baton Rouge, LA, for Plaintiffs/Appellants Leroy Thomas and Banay Thomas.
    Keith S. Giardina, Aaron J. Lawler, Baton Rouge, LA, for Defendants/Appellees Comfort Center of Monroe, LA, Inc. and America First Insurance Company.
    Before CARTER, C.J., GAIDRY and WELCH, JJ.
   GAIDRY, J.

jp.The plaintiff homeowners appeal a summary judgment in favor of the defendants, an air conditioning cleaning business and its insurer, dismissing an action for personal injury and related damages allegedly caused by the defendant business’s negligent performance of work at the plaintiffs’ residence. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Leroy Thomas and Benay Thomas (plaintiffs), husband and wife, are the owners of a residence in Baton Rouge, Louisiana, which they first occupied in July 2000. In the spring of 2007, because their central air conditioning (HVAC) system had not been used for some time and Mrs. Thomas noticed a slight odor in their home upon activating the system, plaintiffs decided to have the system professionally cleaned. Mrs. Thomas contacted a local representative of Comfort Center of Monroe, LA, Inc., doing business as One Hour Air Conditioning and Heating (One Hour), and its sales representative went to plaintiffs’ home and discussed the work to be performed and the price. Plaintiffs agreed to hire One Hour to perform the cleaning work.

The cleaning procedure was performed on March 26, 2007 by a crew led by David McMillin, a technician employed by One Hour. The cleaning procedure took most of the day. Plaintiffs had been advised that they should stay out of the house during the day the procedure was performed and the following day, so they checked into a hotel for two days.

Upon returning to their home on March 28, 2007, plaintiffs noticed an unusual odor and brought their concerns to the attention of One Hour’s employees. Plaintiffs complained that they experienced dizziness, headaches, and burning in their nasal passages, throats, and eyes. According |ato plaintiffs, the foul smell persisted despite their attempts to eliminate it by following One Hour’s suggestions and after consulting other contractors, and One Hour failed to remedy the situation. Plaintiffs claimed that they were forced to reside at a hotel for months until their entire HVAC system was ultimately replaced.

On December 4, 2007, plaintiffs filed a petition for damages, naming One Hour and its liability insurer, America First Insurance Company (America First), as defendants. Plaintiffs alleged that One Hour negligently used inappropriate chemicals or a combination of inappropriate chemicals to clean the duct work and evaporator coils of their air conditioning system; failed to warn them of the inherent dangers of the chemicals and cleaning procedures; negligently failed to use proper cleaning procedures; and was negligent in other unspecified respects. They also alleged that upon returning to their home after One Hour completed the work, they experienced symptoms of “dizziness, headaches, burning of the nasal passages and throat.” Plaintiffs further alleged that because of the persistence of them symptoms while in their home, they were forced to stay at a local hotel at their expense, and also sustained damages for “pain, suffering, anguish, loss of sleep, loss of use of their residence, diminution in value,” and other damages.

America First answered the petition, generally denying its allegations, and affirmatively alleging in defense plaintiffs’ failure to mitigate their damages and that plaintiffs’ symptoms were caused or aggravated by moisture and mold problems unrelated to the work performed by One Hour.

On March 9, 2009, defendants filed a motion for summary judgment, seeking the dismissal of plaintiffs’ claims on the grounds that plaintiffs |4would not be able to prove that the cleaning process and chemicals used by One Hour caused the symptoms of which they complained. Plaintiffs opposed the motion with various affidavits and deposition excerpts.

Defendants’ motion for summary judgment was fixed for hearing on May 18, 2009. At the conclusion of the hearing, the trial court ruled in favor of defendants, granting the motion and providing oral reasons. It directed defendants’ counsel to circulate and submit a proposed judgment. The summary judgment was eventually signed on July 13, 2009.

On July 15, 2009, plaintiffs filed a motion for new trial, seeking a new trial on the grounds of newly-discovered evidence, verified by Mr. Thomas’s attached affidavit. Defendants opposed the motion, filing opposition affidavits.

Plaintiffs’ motion for new trial was heard on August 24, 2009. After considering the supporting and opposing affidavits and other evidence, the trial court denied the motion. Its judgment to that effect was signed on November 19, 2009.

Plaintiffs have now brought this devolu-tive appeal.

ASSIGNMENTS OF ERROR

We summarize plaintiffs’ assignments of error as follows:

(1) The trial court erred in rendering summary judgment in favor of defendants, in failing to find that genuine issues of material fact existed, and in failing to apply the correct statutory and jurisprudential standards in its determination of defendants’ motion; and

|s(2) The trial court erred in failing to grant a new trial on the basis of newly discovered material evidence.

DISCUSSION

Preliminary Considerations: Scope of the Appeal

On our review of the record, we note that in their petition for a devolutive appeal, plaintiffs designated the judgment appealed as that denying their motion for new trial, rather than the summary judgment of July 13, 2009. A judgment denying a motion for new trial is an interlocutory judgment and normally unappealable. However, plaintiffs have clearly challenged the original summary judgment on the merits in their first assignment of error, and their petition for appeal expressly states that they seek review of the judgment on the motion for new trial insofar as it provided for the dismissal of their claims with prejudice. It is also the established practice of the appellate courts, as directed by the supreme court, to treat the appeal of the denial of a motion for a new trial as an appeal of the judgment on the merits, when it is clear from the appellant’s brief that he intended to appeal the merits of the case. Smith v. Hartford Accident & Indem. Co., 254 La. 341, 347-49, 223 So.2d 826, 828-29 (La.1969); Carpenter v. Hannan, 01-0467, p. 4 (La.App. 1st Cir.3/28/02), 818 So.2d 226, 228-29, writ denied, 02-1707 (La.10/25/02), 827 So.2d 1153. Thus, the merits of the summary judgment of July 13, 2009 are properly before us.

Summary Judgment: Standards of Determination and Review

Summary judgment is subject to de novo review on appeal, using the same standards applicable to the trial court’s determination of the issues. Peak Performance Physical Therapy & Fitness, LLC v. Hibernia Corp., 07-2206, p. 5 (La.App. 1st Cir.6/6/08), 992 So.2d 527, 530, writ denied, 08-1478 (La.10/3/08), 992 So.2d 1018. The summary judgment procedure is | ^expressly favored in the law, and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. La. C.C.P. art. 966(A)(2). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, and affidavits in the record show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The mover has the burden of proof that he is entitled to summary judgment. See La. C.C.P. art. 966(C)(2). If the mover will not bear the burden of proof at trial on the subject matter of the motion, he need only demonstrate the absence of factual support for one or more essential elements of his opponent’s claim, action, or defense. La. C.C.P. art. • 966(C)(2). If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense, then the nonmoving party must produce factual support sufficient to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(C)(2). If the mover has put forth supporting proof through affidavits or otherwise, the adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967(B).

Causation and the Burden of Proof

Most negligence cases are resolved by employing the duty-risk analysis, which entails five separate elements: (1) whether the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) whether the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) whether the defendant’s substandard conduct was a eause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) whether the defendant’s substandard conduct was a legal cause |7of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) whether the plaintiff was damaged (the damages element). Hanks v. Entergy Corp., 06-477, pp. 20-21 (La.12/18/06), 944 So.2d 564, 579.

In a personal injury suit, the plaintiff has the burden of proving by a preponderance of the evidence a causal connection between the injury sustained and the accident which caused the injury. The test for determining the causal relationship between the accident and subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injury was caused by the accident. Maranto v. Goodyear Tire & Rubber Co., 94-2603, 94-2615, p. 3 (La.2/20/95), 650 So.2d 757, 759. Thus, the medical relationship between the accident and the claimed injury, or the issue of medical causation, forms part of the cause-in-fact element of the duty-risk analysis in a personal injury suit.

Defendants’ motion for summary judgment focused upon the absence of factual support for the essential element of medical causation forming part of plaintiffs’ claims. Because all of the general and special damages claimed by plaintiffs are ultimately attributable to the alleged symptoms of chemical exposure, the element of medical causation of such symptoms is essential to their recovery. In support of their motion, defendants filed the affidavits of James F. Wilson, One Hour’s owner and general manager, and William J. George, Ph.D., emeritus professor of pharmacology and toxicology at Tulane University School of Medicine, along with excerpts from the deposition of One Hour’s technician, Mr. McMillin, who performed the cleaning procedure.

|sIn his affidavit, Mr. Wilson described the cleaning procedure used by One Hour as a “point source cleaning method,” commonly used in the United States. The method employs a Rotobrush duct cleaning machine to agitate and remove buildup from the interior of round ductwork and a vacuum machine attachment to the Roto-brush machine for hand-cleaning of duct-work that is not round. Mr. Wilson explained that the Rotobrush machine uses a HEPA filtration system, so that there is no regurgitation of any contaminants back into the home. The cleaning procedure also includes treatment and cleaning of the air conditioning system’s evaporator coil, using a “standard, non-toxic treatment” with three chemical products. The first, Nu-Calgon, is an evaporator coil cleaner used to remove buildup on the coil. The second, Pro-Treat 350, helps to prevent clogging of the drain system, and the third, BBJ, is a disinfectant. Mr. Wilson attested that he had been in the HVAC business for twenty years and had never had any prior complaints relating to the “point source cleaning method” or the three chemical products. He further stated that he had never been notified by any manufacturer of health hazards caused by the products used, and that he continued to use them to clean HVAC systems.

In the excerpt from his deposition, Mr. McMillin testified that he could not recall whether the Nu-Calgon product used to clean the evaporator coil was Evap Pow’r-C, a concentrated product, or another Nu-Calgon product, but confirmed that it was the standard product used by One Hour. He further testified that he returned to plaintiffs’ home two days after the | flcleaning procedure was performed in response to plaintiffs’ complaints of “an electrical smell or a burning smell.”

After describing his educational and professional qualifications as an expert in the fields of pharmacology and toxicology, Dr. George attested in his affidavit that he had reviewed the deposition testimony of plaintiffs, Mr. Wilson, and Mr. McMillin; the pleadings; and the Material Safety Data Sheets (MSDS) for the three chemical products used by One Hour. Copies of the referenced MSDS were attached to his affidavit. He concluded that the three products were widely used in the HVAC industry and that, to his knowledge, they had never been subject to a product recall or to peer review articles suggesting a link between exposure to them as claimed by plaintiffs and plaintiffs’ reported complaints. Finally, he expressed his opinion that health effects claimed by plaintiffs would not have been caused by the claimed exposure to the three chemical products.

The MSDS for Nu-Calgon Evap Pow’r-RTU, attached to Dr. George’s affidavit, describes the following acute “effects of overexposure” under “health hazard data”: “EYES & SKIN: May cause irritation. INHALATION: Mists may be slightly irritating to upper respiratory tract. INGESTION: Not expected to be harmful if swallowed.” No “chronic” or “subchronic” effects of overexposure were known. Under the section relating to “protection information/control measures,” respiratory protection was described as “[n]ot required,” and “[g]ood general room ventilation” was recommended.

The MSDS for Pro-Treat 350 described it as a “[wjhite tablet,” and indicated under the section for “health hazards” that it is “moderately toxic if ingested” and that “[e]ye contact causes extreme irritation.” It also “[m]ay cause skin irritation in sensitive individuals.” Although Pro-Treat 350 may | incause chemical pneumonitis “[i]f sprayed or misted,” it “is not toxic by inhalation.” Ingestion of this product “may damage throat and digestive tissue.” The MSDS also stated, with regard to “[mjedical [conditions Aggravated by [ejxposure,” that “[cjontact with skin or eyes, or breathing dust can cause eye[,] skin[,] or tissue damage or affect individuals with respiratory disorders.” It was recommended that the product be used “in a well-ventilated area.”

The MSDS for BBJ Mold and Mildew Remediation Concentrate listed no known health hazards from inhalation, but stated that the product “[m]ay be fatal by ingestion,” was “[ijrritating to eyes,” and “[m]ay irritate skin on prolonged contact.” No respiratory protection was required, and there were no special requirements for ventilation.

Considering the proof presented by defendants, the primary question to be determined is whether plaintiffs “set forth specific facts showing that there is a genuine issue for trial” on the essential element of medical causation. See La. C.C.P. art. 967(B). In opposition to defendants’ motion and supporting proof, plaintiffs filed their own affidavits, excerpts from their depositions, and the affidavits of Eddie Montz, the owner of another air conditioning and heating service business, and Chris White, a consulting professional engineer.

In his deposition, Mr. Thomas expressed his belief, based upon purported conflicting statements of Mr. Wilson and Mr. McMil-lin, that Mr. McMillin used “the wrong chemical” to clean the evaporator coil. However, he could not identify that chemical, and conceded that he was “not a heating and air expert.” He discussed statements supposedly made by an unnamed HVAC technician regarding the necessity of replacing the entire system. Mr. Thomas further testified in his deposition that he had no prior diagnosis lnor history of any problems, including pulmonary problems, with susceptibility to chemical exposure.

For the most part, plaintiffs’ affidavits, dated May 1, 2009, simply reiterate the factual allegations of their petition, with some additional history of their dealings with One Hour after the cleaning procedure and the statements in Mr. Montz’s separate affidavit, and therefore add little relevant facts on the issue of causation. In his affidavit, Mr. Thomas recounted the events leading up to and after the cleaning of the HVAC system, as alleged in his petition, including actions undertaken to eliminate carbon monoxide fumes as the source of their symptoms. He also claimed that Mr. McMillin reported feeling “dizzy” and having a “headache” on April 3, 2007, after returning to plaintiffs’ home in an effort to address their complaints. According to Mr. Thomas, Mr. McMillin admitted that he actually used Nu-Calgon Evap Pow’r-C to clean the evaporator coil, rather than Evap Pow’r-RTU, and wrote the name of the former product on the back of a business card provided to Mr. Thomas. Mr. Thomas described work performed by Mr. Montz and certain statements made by Mr. Montz to him regarding his findings. Finally, Mr. Thomas’s affidavit contains his conclusory statements that One Hour’s cleaning of the HVAC system was “negligent” and that he “incurred damages as a result of [its] negligence.” Mrs. Thomas’s affidavit contains the same or similar information as that of her husband and generally corroborates that information, including One Hour’s purported use of Evap Pow’r-C and the conclusory statements regarding One Hour’s alleged negligence.

Louisiana Code of Civil Procedure article 967(A) provides that “[supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show | ^affirmatively that the affiant is competent to testify to the matters stated therein.” (Emphasis added.) As our review is de novo, we must disregard the hearsay statements attributed to Mr. Montz and the other unidentified HVAC technician in Mr. Thomas’s deposition and affidavit as not within Mr. Thomas’s personal knowledge. Further, plaintiffs’ con-clusory statements and opinions on the issue of negligence in their affidavits may not properly be considered for purposes of summary judgment.

In his affidavit, Mr. Montz testified that he went to plaintiffs’ home on April 6, 2007, and that upon entering the home he “noticed a chemical odor and began to feel dizzy, as if he was getting drunk.” He stated that because the chemical used by One Hour had dried on the evaporator coil, he had to remove it, rinse it off with water, and clean it with a detergent. Mr. Montz further claimed that he also discovered that One Hour used “industrial strength chlorine tablets, rather than residential strength, in cleaning the unit,” and that such was “not the normal procedure.” He also claimed that he found 10 to 12 pieces of such tablets that had not dissolved and that One Hour used “an excessive amount of tablets.”

While Mr. Montz’s affidavit might have raised genuine issue as to the factual issues bearing upon the propriety of One Hour’s cleaning procedure and its alleged negligence, it was insufficient in establishing genuine factual issue as to the causal relationship between One Hour’s cleaning procedure and plaintiffs’ reported symptoms. Specifically, Mr. Montz’s affidavit failed to identify or otherwise link the “chemical odor” he experienced with any chemical product used by One Hour or the chlorine tablets he discovered. He did not describe the odor as corresponding to any distinctive odor associated with the coil cleaning chemical, any other chemical, or the 11 s“ chlorine” (presumably Pro-Treat 350) tablets. As such, his affidavit failed to provide factual support on the issue of causation sufficient to refute the affirmative showing made by defendants and to defeat summary judgment.

In his affidavit, Mr. White, a consulting professional engineer, affirmed that he was retained by plaintiffs to analyze the air and surfaces in their home. He stated that in June 2007 he obtained an air sample and surface wipe samples from plaintiffs’ home, and in July 2007 obtained wipe samples from the hotel room in which plaintiffs were then residing. After the samples were analyzed, Mr. White advised plaintiffs to “provide the analytical results to their doctors to determine whether the foreign substances found were the cause of their health problems.” Mr. White also stated that he recommended that plaintiffs thoroughly clean their home and its contents, have “soft goods” professionally cleaned, and replace carpet and furniture upholstery. He also recommended that plaintiffs have his engineering group prepare specifications for the performance criteria of the cleaning contractor. Finally, Mr. White stated that he examined the MSDS for the chemical products used by One Hour.

Copies of two letters from Mr. White to Mr. Thomas were attached to his affidavit, together with analytical test reports from another company. The latter documents were not prepared, verified, or explained by Mr. White in his affidavit, so their evidentiary value is suspect. A party may not utilize unsworn and unverified documents as summary judgment evidence. Sanders v. J. Ray McDermott, Inc., 03-0064, p. 6 (La.App. 1st Cir.11/7/03), 867 So.2d 771, 775. A document which is not an affidavit or sworn to in any way, or which is not certified or attached to an affidavit, is not of sufficient evidentiary quality to be given weight in determining whether there are remaining genuine issues of material fact. Id.] ASP Enterprises, Inc. v. Guillory, 08-2235, p. 10 (La.App. 1st Cir.9/11/09), 22 So.3d 964, 971, writ denied, 09-2464 (La.1/29/10), 25 So.3d 834. But even if the contents of the third-party laboratory analytical reports may properly be considered, they simply do not identify which chemical compounds from the air and wipe samples, if any, derived from the chemicals used by One Hour, or any pertinent information as to their toxicity and levels of exposure. In summary, Mr. White’s affidavit and its attached documents do not provide relevant information relating to any alleged harmful properties of the chemicals at issue and fail to support a causal link between One Hour’s cleaning procedure and plaintiffs’ reported symptoms and related damages.

Plaintiffs further contend that the evidence they presented in opposition to defendants’ motion was sufficient to give them the benefit of the presumption of causation set forth in Housley v. Cerise, 579 So.2d 973, 980 (La.1991). In the context of personal injury actions, the Hous-ley presumption may be summarized as follows. A plaintiff may be aided in meeting his burden of proof that a claimed injury or medical condition is caused by an accident by a presumption that the injury or condition was caused the accident if he establishes three things: (1) he must prove that he was in good health prior to the accident; (2) he must show that after the 115accident, the symptoms of the claimed injury appeared and continuously manifested themselves; and (3) the medical evidence shows there to be a reasonable possibility of causation between the accident and the claimed injury. See Detraz v. Lee, 05-1263, pp. 4-5 (La.1/17/07), 950 So.2d 557, 560, and Poland v. State Farm Mut. Auto. Ins. Co., 03-1417, pp. 8-9 (La.App. 1st Cir.6/25/03), 885 So.2d 1144, 1148-49.

Arguably, plaintiffs put forth sufficient evidence to establish prima facie proof of the first two elements of the Housley presumption. However, our de novo review of the record fails to reveal a reasonable possibility of causal connexity between One Hour’s use of the chemicals at issue and plaintiffs’ symptoms based upon medical or scientific evidence. Although the MSDS documents list some potential health effects that broadly resemble some of plaintiffs’ reported symptoms, there was no showing that the factual circumstances of plaintiffs’ alleged exposure corresponded to the types or vehicles of exposure mentioned in the MSDS documents. The Housley presumption cannot apply under these facts. See, e.g., Kelly v. AME Janitorial Services Co., 09-1167, pp. 3-4 (La.App. 4th Cir.3/3/10), 33 So.3d 358, 360-61.

Plaintiffs additionally invoke the related doctrine of res ipsa loquitur, urging that the circumstantial evidence in the record warrants an inference of causation of their symptoms by One Hour’s negligent conduct and the chemical products used. The plaintiff in a negligence case may meet his |1fiburden of proof by presenting both direct and circumstantial evidence. Cangelosi v. Our Lady of the Lake Reg’l Med. Ctr., 564 So.2d 654, 664 (La.1990)(on rehearing). Res ipsa loqui-tur is not a substantive legal tenet, but rather an evidentiary doctrine under which a tort claim may be proved by circumstantial evidence. Broussard v. Voorhies, 06-2306, p. 6 (La.App. 1st Cir.9/19/07), 970 So.2d 1038, 1043, writ denied, 07-2052 (La.12/14/07), 970 So.2d 535. The doctrine permits the inference of negligence from the surrounding circumstances, and merely assists the plaintiff in presenting a pri-ma facie case of negligence when direct evidence is not available. Cangelosi, 564 So.2d at 665.

Because application of res ipsa loquitur is an exception to the general rule that negligence is not to be presumed, it should be sparingly applied. Spott v. Otis Elevator Co., 601 So.2d 1355, 1362 (La.1992). Generally, it may be applied when three requirements are met: (1) the circumstances surrounding the accident are so unusual that, in the absence of other pertinent evidence, there is an inference of negligence on the part of the defendant; (2) the defendant had exclusive control over the thing causing the injury; and (3) the circumstances are such that the only reasonable and fair conclusion is that the accident was due to a breach of duty on the defendant’s part. Id.

Plaintiffs cannot avail themselves of the benefit of the doctrine of res ipsa loquitur to defeat summary judgment, as they have failed to set forth specific disputed material facts as to at least two of the three required elements of the doctrine. With regard to the first element, as defendants 117point out, there was pertinent direct evidence relating to the nature and effects of the chemicals sufficient to negate any circumstantial inference of negligence on defendants’ part. As to the second element, relating to control over the injury-causing instrumentality, plaintiffs failed to establish specific facts tending to establish that the chemicals used by One Hour in fact caused their alleged injuries. At best, plaintiffs’ evidence consisted only of circumstantial or anecdotal evidence suggestive (but not probative) of a causal link between the work performed by One Hour and their claimed symptoms. Significantly, no diagnostic medical evidence of chemical exposure was put forth by plaintiffs. Defendants, on the other hand, presented direct evidence, in the form of their toxicological expert’s affidavit, that the chemicals in One Hour’s custody would not have caused the symptoms of which plaintiffs complained. In the absence of specific facts and circumstances from which One Hour’s negligence and a causal link between such negligence and their claimed injuries could reasonably be inferred, plaintiffs cannot defeat summary judgment by relying solely upon applicability of the doctrine of res ipsa loquitur. See Continental Cas. Co. v. McClure, 313 So.2d 260, 262 n. 2 (La.App. 4th Cir.1975).

In summary, plaintiffs have failed to put forth specific facts that would tend to prove that the chemicals used by One Hour caused the symptoms of which they complained and their consequential damages. For these reasons, we conclude that plaintiffs’ first assignment of error has no merit, and that the trial court did not err in rendering summary judgment on the showing made. See, e.g., Bradham v. Union Carbide, 07-919, pp. 7-10 118(La.App. 5th Cir.5/27/08), 985 So.2d 846, 850-51, unit not considered, 08-1956 (La.10/31/08), 994 So.2d 527; and Alex v. Dr. X, 96-1196, pp. 12-14 (La.App. 3rd Cir.3/5/97), 692 So.2d 499, 506-07.

New Trial

In their second assignment of error, plaintiffs contend that the trial court erred in denying their motion for new trial. The stated basis of that motion was plaintiffs’ post-hearing discovery of a One Hour business card upon which Mr. McMillin identified the Nu-Calgon product used as Nu-Calgon Evap Pow’r-C, rather than Evap Pow’r-RTU, and an updated MSDS for Evap Pow’r-RTU, purportedly showing more toxic potential. Because defendants’ expert, Dr. George, based the conclusions of his affidavit on the use of Evap Pow’r-RTU and the older version of its MSDS, plaintiffs argue that the newly discovered evidence warranted the granting of a new trial on the motion for summary judgment.

One of the peremptory grounds for a new trial is “[w]hen the [moving] party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.” La. C.C.P. art. 1972(2). The standard of review of a judgment on a motion for new trial, whether on peremptory or discretionary grounds, is that of abuse of discretion. Magee v. Pittman, 98-1164, p. 19 (La.App. 1st Cir.5/12/00), 761 So.2d 731, 746, writ denied, 00-1694 (La.9/22/00), 768 So.2d 31. The breadth of the trial court’s discretion to order a new trial varies with the facts and circumstances of each case. Norton v. Mayeaux, 05-1704, p. 11 (La.5/30/06), 931 So.2d 338, 344.

To meet his burden of proof on a motion for new trial based upon newly discovered evidence, the mover must show that such evidence (1) is not merely cumulative; (2) would tend to change the result of the case; (3) |19was discovered after trial; and (4) could not, with due diligence, have been obtained before or during trial. Couvillion v. Shelter Mut. Ins. Co., 95-1186, p. 7 (La.App. 1st Cir.4/4/96), 672 So.2d 277, 282-83.

The information related to the use of Nu-Calgon Evap Pow’r-C and Mr. McMillin’s writing of that product’s name on his business card was not new information, as plaintiffs had previously attested to that same information in their affidavits in opposition to the motion for summary judgment. The post-hearing location of the business card itself therefore added nothing new to the facts originally placed before the trial court for the hearing on the motion for summary judgment, and thus the business card constituted merely cumulative evidence. Plaintiffs were not entitled to a new trial solely on the basis of their discovery of the card itself, which was already known to exist. Additionally, in both of their affidavits opposing summary judgment, plaintiffs emphasized their factual contention that Evap Pow’r-C was used, rather than Evap Pow’r-RTU. Thus, such information was not newly discovered evidence, and plaintiffs made no showing that the MSDS for Evap Pow’r-C (attached to their motion for new trial) was unavailable to them before or during the trial.

Plaintiffs’ strongest argument in favor of a new trial was the evidence relating to the 2008 revised MSDS for Nu-Calgon Evap Pow’r-RTU. As emphasized by plaintiffs, the revised MSDS does set forth some differences and more detail regarding potential health hazards and “exposure controls/personal protection” than does the older 2006 MSDS. For example, |2pthe revised MSDS cautions that ingestion “[m]ay cause stomach distress, nausea, or vomiting,” a significant change from the 2006 MSDS. The revised MSDS also warns that “[ejxcessive intentional inhalation may cause respiratory tract irritation and central nervous system effects (headache, dizziness)” and that “[sjymp-toms of overexposure may be headache, dizziness, tiredness, nausea and vomiting.” (Emphasis added.)

Defendants emphasize that there is no evidence of either ingestion or excessive intentional inhalation of the product by plaintiffs, and that both the 2006 MSDS and the revised 2008 MSDS categorize the health hazard rating of Evap Pow’r-RTU as “1” (“slight”), on a scale of “0” (“minimal”) to “4” (“severe”). More importantly, defendants submitted an excerpt from Mr. McMillin’s deposition, in which he confirmed that the Nu-Calgon product is diluted with water prior to being sprayed on the evaporator coil, and that in this particular job the application of the product was then followed by a water rinse. Defendants submitted another affidavit of their expert, Dr. George, in which he emphasized the diluted nature of the product. Dr. George also pointed out that Evap Pow’r-C had the same health hazard rating of “1” (“slight”) as Evap Pow’r-RTU, posing a possible risk of only minor and transient effects. He concluded that even if Evap Pow’r-C (the concentrated product) was the product used, his prior opinion that plaintiffs’ symptoms would not have been caused by the product did not change.

Even if plaintiffs’ evidence was newly discovered, it would not have served to change the result. Under the circumstances, we cannot conclude that the trial court abused its discretion in denying plaintiffs’ motion for new trial. Plaintiffs’ second assignment of error has no merit.

121DECREE

The summary judgment of the trial court in favor of the defendants, Comfort Center of Monroe, LA, Inc., and America First Insurance Company, and against the plaintiffs, Leroy Thomas and Benay Thomas, dismissing the plaintiffs’ causes of action and claims with prejudice, is affirmed. The judgment denying plaintiffs’ motion for new trial is also affirmed. All costs of this appeal are assessed to the plaintiffs.

MOTION TO STRIKE REPLY BRIEF DENIED; AFFIRMED.

      . No answer by One Hour appears in the record.

      . Defendants have filed a motion to strike plaintiffs’ reply brief, with an alternate motion for leave to file a supplemental brief on their own behalf, on the grounds that plaintiffs’ reply brief raised, for the first time, the applicability of res ipsa loquitur to defeat summary judgment. Because that doctrine is an evidentiary doctrine relating to circumstantial evidence, rather than a doctrine of substantive law, we conclude that defendants will suffer no substantial prejudice by our consideration of plaintiffs’ argument in the context of this matter. Accordingly, we deny defendants’ motions.

      . Other evidence and testimony in the record uniformly confirm that the actual product name for the coil cleaner was either Evap Pow’r-RTU (a diluted product) or Evap Pow'r-C (a concentrated product), and that the manufacturer or distributor of those two related products was Nu-Calgon Wholesaler, Inc. The full name of the BBJ product was BBJ Mold and Mildew Remediation Concentrate, manufactured by BBJ Environmental Solutions, Inc.

      . Mr. Montz's affidavit refers to pieces of the tablets as "not totally dissolved,” suggesting that they were placed in water. The excerpts from Mr. Thomas’s deposition confirm that the tablets were recovered by Mr. Montz from the drain pan of the HVAC system. If the tablets were immersed in water, they could not produce the "dust” that might "affect individuals with respiratory disorders,” as stated in the MSDS for Pro-Treat 350.

      . For example, Mr. White’s letter relating to the air sample states that a number of chemical compounds were detected, including ethanol and xylene, but only one, "xylene (para & meta),” is actually listed on the laboratory analysis summary as "detected at reported concentration in ppbv and ug/m3.” The MSDS for Nu-Calgon Evap Pow’r-RTU lists "# 2-butoxyethanol” and "sodium xylene sul-fonate” among its potentially hazardous ingredients, but neither Mr. White’s affidavit, the attached letter, nor the laboratory analysis summary identifies any compounds detected with those ingredients.

      . The presumption as originally articulated in the Housley opinion was worded in terms of "disability,” rather than simply injury, because the presumption developed in workers’ compensation cases, and a compensation claimant is only entitled to benefits in the event of disability for work. The presumption was only later extended to delictual actions for personal injury, including non-disabling injury. See Detraz v. Lee, 05-1263, p. 5 n. 2 (La.1/17/07), 950 So.2d 557, 560 n. 2.

      . Evidence is either direct or circumstantial. Direct evidence is evidence that, if believed, proves a fact. Circumstantial or indirect evidence is evidence that, if believed, proves a fact from which one may logically and reasonably conclude that another fact exists. Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 18 n. 6 (La.2/29/00), 755 So.2d 226, 236 n. 6.

      . The vague reported symptoms that plaintiffs attributed to Mr. McMillin and Mr. Montz were also not linked to any chemical exposure, let alone the chemicals at issue, by any medical or scientific evidence. Thus, the evidence relating to the claimed symptoms of Mr. McMillin and Mr. Montz was insufficient to satisfy plaintiffs’ burden of proof and to defeat summary judgment. See Landreneau v. Copeland’s Cheese Cake Bistro, L.L.C., 08-647, pp. 5-7 (La.App. 5th Cir. 1/13/09), 7 So.3d 703, 706-07.

      . The MSDS for Evap Pow’r-C and the revised MSDS for Evap Pow’r-RTU were neither certified nor attached to Mr. Thomas’s affidavit submitted with his motion for new trial, and thus could not ordinarily be considered, but for the fact that both were attached to and identified in the opposition affidavit of defendants' expert, Dr. George. Under these circumstances, where both parties agree as to the contents of the documents and submit them for the court's consideration, the documents may be considered the subject of a stipulation or joint admission. See, e.g., Boland v. West Feliciana Parish Police Jury, 03-1297, p. 6 (La.App. 1st Cir.6/25/04), 878 So.2d 808, 814, writ denied, 04-2286 (La. 11/24/04), 888 So.2d 231.


source: Caselaw Access Project

author: KLINE, J. PETTIGREW, J., KUHN, J,

license: Public Domain

text:
    ST. TAMMANY PARISH CORONER v. Jane DOE.
    No. 2010 CA 0946.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 29, 2010.

      Patrick J. Berrigan, D. Rex English, Slidell, Louisiana and Deborah Cunningham Foshee, Covington, LA, for Plaintiff/Appellant, St. Tammany Parish Coroner.
    Laura King, Bay St. Louis, Mississippi, for Defendant/Appellee, Edward Gibson.
    Before KUHN, PETTIGREW, JJ., KLINE, J.

      . Judge William F. Kline, Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   KLINE, J.

|2The St. Tammany Parish Coroner appeals a judgment ordering it to produce for Laura King copies of certain documents for 10 cents per page and ordering it to produce pages of emails in an electronic format making use of Adobe software. For the following reasons, we amend in part and affirm as amended.

PERTINENT FACTS AND PROCEDURAL HISTORY

This litigation arises from a public records request Ms. King made to the St. Tammany Parish Coroner (Coroner). On January 13, 2010, Ms. King made a public records request to the Coroner seeking copies of emails from seven persons covering the period from June 30, 2008 through the date of the request. She also asked for copies of “all Coverdell grant records” from 2007 through the date of the request. The letter suggested that the records be copied onto a CD or a flash drive, but stated that they could be produced as paper copies.

The Coroner responded on January 21, acknowledging the request. The Coroner’s office estimated that at least 93,000 pages would be produced at 25 cents per page, for an estimated total of $23,250. The letter recited that if burned to a disc, the copies would be 50 cents per page, for an estimated total of $46,500. Additionally, the letter from the Coroner’s office stated that Ms. King would be charged overtime rates for the work for an indeterminate number of hours.

On January 22, 2010, the Coroner filed a Petition for Declaratory Relief. In the petition, the Coroner stated that it could not comply with Ms. King’s request within three days as required by law. The petition commented that overtime hours would be required to comply with the records request. The petition also referenced possible privileges that the Coroner might assert. The Coroner sought relief from the court allowing it more than three days to respond the records request; entitling the Coroner to reasonable copying costs for paper copies at recognized rates; hallowing the Coroner to collect the fees in advance; entitling the Coroner to reimbursement for overtime and outside copy labor charges; and requiring Ms. King to post a cost bond.

On January 26, 2010, Ms. King responded with an amended public records request. She reduced her request to seek access to only her email records between June 30, 2008 and August 25, 2009, together with the Coverdell Grant records. She sought to examine and copy the records herself. In the requesting letter, she initially agreed to pay 25 cents per copy for copies of the documents.

On February 11, Ms. King answered the petition, made a reconventional demand, and sought declaratory relief and a writ of mandamus. Ms. King generally denied the allegations of the Coroner’s petition, sought an order compelling the Coroner to comply with her public records request, and asked for attorney fees. The Coroner answered Ms. King’s reconventional demand, generally denying her allegations.

The matter came on for trial by summary proceeding on March 4, 2010. The trial court subsequently entered judgment granting in part and denying in part both parties’ demands. It ordered the Coroner to produce 440 pages of the Coverdell Grant records at a cost of 10 cents per page, or $44.00. It further ordered the Coroner to immediately provide 4,782 pages of emails immediately by electronic format, with at least 2,500 of the remaining pages to be produced by electronic format each successive Friday until all 14,339 documents were produced. The trial court ordered the Coroner to promptly generate a privilege log and ordered the Coroner to produce privileged information in redacted form if possible. The trial court denied Ms. King’s prayer for attorney fees.

The trial court denied the Coroner’s request for new trial. The Coroner appealed, asserting four assignments of error, summarized as follows:

|41. Ordering Ms. King to pay only 10 cents per page for copies of Cover-dell grant records;
2. Ordering the Coroner to produce 14,339pages of email per Ms. King’s public records request at no cost to her;
3. Ordering the Coroner to produce 14,339pages of email in an electronic format;
4. Ordering the Coroner to produce 14,339pages of email at a production schedule that is so burdensome that it interferes with the operation of its constitutional and legal duties.

DISCUSSION

The Coroner’s arguments primarily criticize the trial court’s interpretation of La. R.S. 44:32(C)(2) and Louisiana Administrative Code (LAC) 4:1.301. These provisions govern public records in the hands of state agencies. They provide as follows, in pertinent part:

La. R.S. U:32(C)(2):

For all public records of state agencies, it shall be the duty of the custodian of such records to provide copies to persons so requesting. Fees for such copies shall be charged according to the uniform fee schedule adopted by the commissioner of administration, as provided by R.S. 39:241.[]

LAC LI-301:

A. Copies of public records furnished to a person so requesting shall be provided at fees according to the following schedule.
B. 1. Charges for the first copy of any public records shall be at a minimum $0.25 per page for microfiche reproductions or paper copies up to 8 1/2 by 14 inches.

Electronic Format Email

The Coroner argues in brief that under these provisions, the trial court judgment is contrary to law because “the law requires that public records stored in a computer database will be provided through printouts.” The Coroner further Largues that, “[h]ad the legislature wished for the public to be able to obtain reproductions of information stored in the computer database of a state agency in any other form, they could have so stated.” He continues, “As the law stands, the only reproductions permitted of records stored in a state agency computer are printouts.”

In this context, we review Louisiana law and jurisprudence to determine whether the trial court erred in ordering that the Coroner produce 14,339 pages of email on an electronic format. First, La. Const. Art. 12, § 3 provides a fundamental right to the public to have access to public records, as follows:

No person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law.

Pursuant to this Constitutional guarantee, La. R.S. 44:31 provides as follows:

A. Providing access to public records is a responsibility and duty of the appointive or elective office of a custodian and his employees.
B. (1) Except as otherwise provided in this Chapter or as otherwise specifically provided by law, and in accordance with the provisions of this Chapter, any person of the age of majority may inspect, copy, or reproduce any public record. (Emphasis added.)
(2) Except as otherwise provided in this Chapter or as otherwise specifically provided by law, and in accordance with the provisions of this Chapter, any person may obtain a copy or reproduction of any public record.
(3) The burden of proving that a public record is not subject to inspection, copying, or reproduction shall rest with the custodian.

Further, as provided in La. R.S. 44:31(B)(3) and La. R.S. 44:35, the burden of justification for withholding records is on the custodian. The Louisiana Supreme Court instructs us that the provisions of the Constitution and the statutes must be liberally construed in favor of free and unrestricted access, “and any doubt must be resolved in favor of the right of access.” Title Research Corp. v. Rausch, 450 So.2d 933, 936-37 (La.1984).

| BPursuant to these precepts, we conclude that the trial court did not err in ordering the Coroner to produce the pages of email by electronic format.

At the hearing in the trial court, at which no evidence was introduced, the counsel for the Coroner conceded that it could and would produce the pages in electronic format:

— Ms. King argued that less expensive means than photocopying existed for her to obtain the records' she sought.
— The Coroner acknowledged that he had the technology and skill to download the information sought, but he argued, “[tjhat’s just a time issue. I mean it’s not really a financial issue other than the time required to do that....”

We note, as did the supreme court in Title Research Corp., 450 So.2d at 937, that the person requesting public records has the right pursuant tó La. R.S. 44:31(B)(1) to choose one of four options and that “the choice of which optional right to exercise rests with the one requesting the records and not with the custodian.” (Emphasis added.)

— Here, while Ms. King requested copies in her formal requests, at trial she requested that she either be allowed to copy the emails herself or that they be downloaded onto an electronic format. Thus, she made her election, indicating that she wanted the least expensive option.
— After discussion with counsel regarding cost, time, and ease of compliance, counsel for the Coroner conceded that it would produce the records in electronic format as follows: “Absolutely we will produce it that way.” (Emphasis added.)

Obviously, therefore, all documents had not been reproduced at that time. None had been produced to Ms. King. Accordingly, the trial court found that copy 17costs could be avoided and ordered that the emails be downloaded onto an electronic format over a four week period.

Further, despite the Coroner’s contention to the contrary, nothing in La. R.S. 44:32(0(2) or LAC 4:1.301 specifically prohibits reproduction of public records by electronic format. And, “access can be denied only when a law, specifically and unequivocally, provides otherwise.” Title Research Corp., 450 So.2d at 936.

In Johnson v. City of Pineville, 08-1234, p. 10 (La.App. 3 Cir. 4/8/09), 9 So.3d 313, 320, although involving a non-state agency, the court considered a similar public records request and found use of electronic formats is safe and reasonable. The City of Pineville court observed and reasoned regarding voluminous records, with which we agree:

We live in an age of technology in which private individuals, as well as government, can use information technology to create astronomical numbers of documents. To allow [the public entity] to create such voluminous records using information technology and then deny the use of that same technology to the public reviewing those records would strike directly at the heart of the public’s fundamental right of access to public records that is guaranteed by the Louisiana Constitution. When confronted with public records of goliath proportions, the average citizen’s fundamental right of access would prove illusive if he is denied the opportunity to use the very technology which helped create the overwhelming amount of information. To reproduce over 13,000 e-mails on paper, when other safe, efficient, and reasonable means are available, is unnecessarily laborious, costly, wasteful, and conflicts with the legislative intent of making public records as available as possible. City of Pineville, 08-1234 at p. 9, 9 So.3d at 319-20.

Liberally construing the public records laws in favor of access to the records, the City of Pineville court ordered reproduction of public records employing an electronic format, noting that no specific law prohibited reproduction of public records in this format. Id., 08-1234 at p. 10, 9 So.3d at 320.

Similarly, we conclude the trial court did not err in ordering the Coroner to produce the emails requested by electronic format and in providing a reasonable |stime for the Coroner to comply. And based on the Coroner’s representations at trial, we conclude the trial court did not err in failing to impose the apparently negligible cost of the electronic format on which the data will be downloaded.

Attempts to Distinguish City of Pineville

We respectfully acknowledge the Coroner’s attempts to distinguish City of Pine-ville, but we find the attempts unpersuasive. First, he argues that the use of the word “shall” in La. R.S. 44:32(C)(2) is mandatory where it requires that fees for copies “shall be charged” according to a uniform fee schedule adopted by the commissioner of administration. As discussed above, the statute does not specifically prohibit the reproduction of public records by electronic means. Secondly, he argues that unlike in City of Pineville, the emails at issue here had not been segregated from those exempt from the Public Records laws. This argument was not raised at trial and appears contrary to those made at trial. The record does not support the Coroner’s arguments in this regard. Further, the trial court gave the Coroner a reasonable amount of time to comply with its judgment.

Third, the Coroner argues that the trial court in City of Pineville ordered that the documents be produced at the cost of the person requesting the public records while the trial court here did not assess costs. As discussed above, however, the trial court found, based on the representations of counsel, that the cost of reproducing the emails at issue could be avoided. From the record before us, we cannot conclude that the trial court erred in this regard.

Fourth, the Coroner seems to argue that it can limit the number of documents a requestor can receive at no cost. The Coroner cites a prisoner suit in support of this contention. However, as discussed above, the trial court reasonably | ¡¡found that costs and time expenditure could be avoided by employment of an electronic format.

Further, in this fourth argument the Coroner seems to contend, without support of law, that one requesting public records should be required to pay for the Coroner’s exercise of his obligations to protect legally privileged information. The Coroner seeks to include the office costs of protecting privileged information into the costs of copying. The law, however, sometimes puts an onerous burden on the Coroner to prove that he is not required to comply with a public records request. La. R.S. 44:31(B)(3) and La. R.S. 44:35. We find nothing in the law, and the Coroner cites nothing, that would allow the Coroner to shift this burden.

Fifth, the Coroner re-asserts that LAC 4:1.301 requires that documents be reproduced on paper. We have addressed this argument in the reasons set forth above. Finally, the Coroner argues based on City of Pineville that one making a public records request should not always be allowed to reproduce public records in any way he or she chooses. Our holding today does not go so far as the Coroner suggests. Based on the record before it and the representations of counsel, the trial court fashioned a reasonable and narrowly-tailored remedy for the issues at hand in accordance with the law.

Accordingly, we find no merit in the Coroner’s second, third, and fourth assignments of error.

Copies of Grant Records

At trial, the Coroner argued that the Coverdell Grant records were in hard form and could be not reproduced electronically. He argues that the trial court erred in ordering a copy cost of 10 cents per copy when LAC 4:1.301 requires at least 25 cents per page. We agree that LAC 4:1.301 requires copy costs of 25 cents Imper page, and we do not see where the trial court has discretion to vary this cost, despite the Coroner’s representation. At trial the Coroner advised the trial court that, “It’s up to you to sort of, you know, it’s up to you to set the price.” While we agree with the trial court that 10 cents per copy is reasonable, we reluctantly conclude that the trial court abused its discretion in setting the fee for hard copies at less than that required by LAC 4:1.301.

We find merit in the Coroner’s first assignment of error. We amend the trial court judgment to reflect a copy cost for 440 pages of the Coverdell Grant records to 25 cents per page, or $110.00.

DECREE

For the foregoing reasons, we amend the trial court judgment and order and adjudge that Laura King shall pay a reasonable sum to the St. Tammany’s Parish Coroner’s Office of $0.25 per page for copies of the Coverdell Grant records for a total of $110.00. We vacate the judgment insofar as it ordered $0.10 per page for these copies for a total of $44.00. In all other respects, we affirm the judgment of the trial court. Costs of this appeal in the amount of $409.05 are to be split equally between Laura King, referred to as Jane Doe in the petition, and the St. Tammany Parish Coroner.

AMENDED; AFFIRMED AS AMENDED

KUHN, J., Concurs in Part & Dissents in Part & Assigns Reasons.

PETTIGREW, J., concurs and assigns reasons.

PETTIGREW, J.,

concurs.

| Louisiana Revised Statutes 44:35 B places the burden on the custodian to sustain his action. The Coroner has failed to do such.

KUHN, J,

concurring in part and dissenting in part.

hi concur with that portion of the plurality opinion that amends the trial court’s judgment and orders Ms. King to pay $0.25 per page for copies of 440 pages related to the Coverdell Grant. Otherwise, I dissent from the plurality’s affirmation of that part of the trial court’s judgment that ordered the St. Tammany Parish Coroner (“the Coroner”) to produce public records of that agency in an electronic format at no cost to Ms. King.

The Coroner established as a matter of law that it was entitled to impose a $0.25 charge for copies of the public records requested by King. It is undisputed that the Coroner’s office is a state agency. See La. Const. Art. V, § 29; Mullins v. State, 387 So.2d 1151 (La.1980). As such, it is subject to the rules set forth in La. R.S. 44:32 C(2), addressing public records of state agencies, which sets forth that “it shall be the duty of the custodian of such records to provide copies to persons so requesting. Fees for such copies shall be charged according to the uniform fee schedule adopted by the commissioner of administration, as provided by R.S. 39:241.” (Emphasis added). Louisiana Revised Statutes 44:32 C(2) further states, “Copies shall be provided at fees according to the schedule.... ” (Emphasis added.) Louisiana Revised Statutes 39:241 states, in pertinent part, “Copies of the public record furnished to a person so requesting shall be provided at fees according to the schedule.... ” (Emphasis added).

|2The uniform fee schedule for copies of public records is set forth in LAC 4:1.301. Section B of that regulation sets forth that charges for the first copy of any public records shall be at a minimum $0.25 per page for microfiche reproductions or paper copies up to 8½ by 14 inches.

Due to the plain meaning of the pertinent statutes and regulation, there is no need for further interpretative analysis. Ms. King is entitled to “obtain a copy or reproduction of any public record except as otherwise provided [by law].” La. R.S. 44:31 B(2). As an exception to this general rule, the law provides that when access to public records of a state agency is sought, the custodian is mandated only to provide “copies” of such records and the applicable “fees for such copies shall be charged.” La. R.S. 44:32 C(2). Thus, the legislature has placed reasonable restrictions on the public’s fundamental right of access to public records of state agencies by requiring that the person requesting copies of public records pay a fee for such copies. La. R.S. 44:32 C(2). The fee of $0.25 per copy set forth in LAC 4:1.301 is a reasonable fee.

During the March 4, 2010 hearing, the Coroner’s counsel informed the court that the Coroner’s office had already printed 14,339 pages of e-mail in response to Ms. King’s request. (Transcript pp. 49, 51.) The record further establishes that Ms. King did not challenge this information. The plurality’s ruling imposes the cost of such an effort on the State rather than on Ms. King, a result that is contrary to the applicable law. Thus, the record demonstrates that the Coroner met its burden of establishing that it was entitled to collect the $0.25 per page fee for the records it produced. Accordingly, I dissent in part from the plurality’s findings to the contrary.

      . Although the defendant/appellee is referred to as Jane Doe in the lawsuit caption, Ms. Laura King is the real party in interest.

      . Louisiana Revised Statutes 39:241 provides in pertinent part as follows:
      A. Not later than ninety days after the effective date of this Section, the commissioner of administration, with the approval of the governor, shall, by rule or regulation, adopt a uniform fee schedule for copies of public records of executive branch state agencies furnished to persons so requesting by custodians thereof, as provided by R.S. 44:32. Copies of the public record furnished to a person so requesting shall be provided at fees according to the schedule, except for copies of public records, the fees for the reproduction of which are otherwise fixed by law.

      . Louisiana Revised Statutes 44:35(B) provides that “the burden is on the custodian to sustain his action.”

      . The Coroner’s main concern in this regard at the trial court appears to have been the time and costs associated with asserting it privileges. We discuss his contentions below.

      . The Coroner contrasts the language employed in La, R.S. 44:32(C)(l)(a). which applied to the City of Pineville, a non-state agency The language of this paragraph is discretionary. This paragraph provides as follows:
      For all public records, except public records of state agencies, it shall be the duty of the custodian of such public records to provide copies to persons so requesting. The custodian may establish and collect reasonable fees for making copies of public records, Copies of records may be furnished without charge or at a reduced charge to indigent citizens of this state. (Emphasis added.)

      . We observe that the Public Records Laws seem designed to provide actual costs involved in providing records pursuant to a requestor’s constitutionally protected right. It does not seem designed to allow office costs and costs of asserting a public entity’s legal obligations and privileges.


author: KUHN, J.

text:
    CONAGRA FOODS, INC. v. Cynthia BRIDGES, Secretary of the Department of Revenue, State of Louisiana.
    No. 2010 CA 0907.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 29, 2010.
    Phyllis D. Sims, Christopher J. Dichar-ry, Jenny N. Phillips, Baton Rouge, LA, for Plaintiff-Appellee ConAgra Foods, Inc.

      Elroy A. James, Debra Morris, Florence B. Saenz, Joe F. Stevenson, Bradley S. Blanchard, Baton Rouge, LA, for Defendant-Appellant Cynthia Bridges, Secretary of the Department of Revenue, State of Louisiana.
    Before KUHN, PETTIGREW, and KLINE, JJ.

      . The Honorable William F. Kline, Jr. is serving pro tempore by special appointment of the Louisiana Supreme Court.

   KUHN, J.

| gDefendant-appellant, Cynthia Bridges, Secretary of the Louisiana Department of Revenue, State of Louisiana (the Department) appeals the trial court’s judgment granting the motion for summary judgment filed by plaintiff-appellee, ConAgra Foods, Inc. (ConAgra) and concluding that the corporate taxpayer is entitled to a refund of amounts paid under protest, interest, and costs. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On December 3, 2007, ConAgra paid $123,888 in Louisiana corporation taxes under protest and gave the Department notice of its intention to file suit for recovery of the protested payment. ConAgra subsequently paid an additional $51,813.61, representing interest, on December 26, 2007, and notified the Department of its intention to file suit for recovery of that amount as well. The payments, totaling $175,646.61, represented taxes and interest as determined by the Department for the fiscal years ending in May 2004 and 2005.

ConAgra filed its petition seeking a refund of taxes paid under protest on December 26, 2007. On February 13, 2008, the Department filed an answer, generally denying ConAgra’s allegations. ConAgra subsequently filed a motion for summary judgment, averring entitlement to the refund as a matter of law; and the Department filed a cross-motion for summary judgment, likewise contending that the issue of ConAgra’s entitlement to a refund was a matter of law, but suggesting as relief a ruling that the Department had correctly assessed the tax.

A hearing on the cross motions was held on December 7, 2009, after which the trial court granted summary judgment in favor of the Department, denied ConAgra’s motion for summary judgment, and dismissed its petition. ConAgra |sfiled a motion for new trial. Another hearing was held on the matter, after which, the trial court reversed itself by granting a new trial, which denied the Department’s motion for summary judgment, granted ConAgra’s, and decreed ConAgra was entitled to a refund of the amounts paid under protest as well as interest and costs. This appeal followed.

SUMMARY JUDGMENT LAW

Summary judgments are reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

As conceded by the parties, the questions presented for our determination are purely legal ones, rather than factual ones, and therefore particularly appropriate for determination by summary judgment “as a matter of law.” See La. C.C.P. art. 966 C(l); Hays v. Louisiana State Bd. of Elementary and Secondary Educ., 2009-1386, p. 4 (La.App. 1st Cir.6/11/10), 39 So.3d 818, 820.

DISCUSSION

The following facts are undisputed by the parties. As a parent corporation, Con-Agra sold the stock of three wholly-owned subsidiaries that operated in Louisiana to Pilgrim’s Pride Corporation (Pilgrim’s Pride) and UAP Holding Corporation (UAP), who were third parties unrelated to ConAgra. Filing separate Rforms with the Internal Revenue Service (IRS), Pilgrim’s Pride and UAP (as the purchasing corporations) made special § 338(h)(10) tax elections with ConAgra (the parent-selling corporation) under the Internal Revenue Code (IRC) relative to the tax consequences resulting from the transfer transactions.

It is undisputed that under federal law, when the parties make a § 338(h)(10) election, the taxpayers are permitted to treat stock sales as if they were assets sales followed by a complete liquidation. Therefore, with the § 338(h)(10) election, ConA-gra’s sale of the stock of its subsidiaries to Pilgrim’s Pride and UAP was, under the IRC, deemed an assets sale; and ConA-gra, as the former parent of the subsidiaries, was permitted to treat the transaction as a deemed liquidation of the subsidiaries back into their former parent under 26 U.S.C.A. § 332. Most importantly, it is undisputed that under federal law, with the § 338(h)(10) election, the subsidiaries’ tax attributes were preserved for the benefit of ConAgra, as the selling parent corporation, which acquired those tax attributes in the deemed § 332 liquidation of the subsidiaries.

On appeal, the Department contends “[t]he trial court erred in determining that [§ 338(h)(10) ], which for federal tax purposes treats the sale of the stock of a subsidiary as a sale of the subsidiary’s assets followed by a liquidation of the subsidiary, resulted in ConAgra becoming the ‘acquiring corporation’ for state corporate income tax purposes.” The Department reasons that because Pilgrim’s Pride and UAP were the purchasers of the subsidiaries in the deemed assets sale, each was the “acquiring corporation” who succeed to all of the assets of the ^purchased ConAgra subsidiary, including the subsidiaries’ tax attributes, in particular the net operating loss carryovers (NOLs).

La. R.S. 47:287.86, which appears in the Chapter setting forth the Louisiana Corporation Income Tax Act, sets forth applicable provisions for the NOLs deduction, providing in pertinent part:

I. Net operating loss carryovers.
(1) Notwithstanding any other provisions of this Chapter to the contrary, the acquiring corporation shall succeed to and take into account, as of the close of the day of distribution or transfer, the aggregate net operating loss carryovers of the distributors or transferor corporation as determined under this Section, subject to federal law and the limitations provided thereunder.

According to the relevant provisions of 26 U.S.C.A. § 381:

(a) General rule. — In the ease of the acquisition of assets of a corporation by another corporation—
(1) in a distribution to such other corporation to which section 332 (relating to liquidations of subsidiaries) applies ... the acquiring corporation shall succeed to and take into account, as of the close of the day of distribution or transfer, [the net operating loss carryovers as described in subsection (c) ] of the distributor or transferor corporation....

A close scrutiny of the two statutes reveals that the language utilized in La. R.S. 47:287.86(I)(1) is nearly identical to that employed under federal law. And the express provisions of La. R.S. 47:287.86(I)(1) indicate that the determination of “the acquiring corporation [that] shall succeed to and take into account, as of the close of the day of distribution or transfer, the aggregate net operating loss carryovers of the distributors or transferor corporation,” is “subject to federal law 1 Rand the limitations provided thereunder.” Because the Department has conceded that under federal law ConAgra as the parent selling corporation of the subsidiaries is entitled to succeed to and take into account the remaining tax attributes after the deemed sale of the assets to Pilgrim’s Pride and UAP in the deemed liquidation of the subsidiaries back into the parent, and mindful of the nearly identical provisions of both the Louisiana and the federal statutes, clearly ConAgra is the “acquiring corporation” of the NOLs for Louisiana state income tax purposes as well. See also La. R.S. 47:287.701(B) (stating that “[e]xcept as otherwise provided or clearly appearing from the context, any term used in [the Louisiana Corporation Income Tax Act] shall have the same meaning as when used in a comparable context at federal law”); and La. R.S. 47:287.701(L) (setting forth express legislative findings and declarations relative to the adoption of Louisiana’s corporation net income tax, including that “certain provisions of the laws of the United States relating to definitions [and] the allowance of deductions” will “[simplify preparation of Louisiana Corporation Income Tax returns by taxpayers” and “[a]id in the interpretation of the corporation income tax law through increased use of federal judicial and administrative determinations and precedents.”)

The Department asserts that allowing a transaction in which a parent corporation sells its wholly-owned subsidiaries to a third party to permit two acquiring corporations, i.e., the third party insofar as the transfer of the assets and the parent corporation insofar as the transfer of the NOLs, results in inconsistent, different meanings for the term “acquiring corporation” as used throughout Title 47, which addresses “Revenue and Taxation.” The Department points to La. R.S. 1747:133(I)(l)(b) (addressing the acquisition of assets of a corporation by another corporation) and 138(A)(1)(c) (providing for tax consequences in the acquisition of one corporation in exchange for stock of a corporation which is in the control of the purchasing corporation) as limiting the term “acquiring corporation” to but one entity. But the plain language of La. R.S. 47:287.86(I)(1) states, “Notwithstanding any other provisions of this Chapter to the contrary” in its expression of the entity entitled to succeed and take into account the NOLs of the distributors or transferor corporation as determined under that section. Thus, to the extent that the provisions of La. R.S. 47:133(I)(l)(b) and 138(A)(1)(c) are contrary to that determination of the proper entity entitled to succeed and take into account the NOLs of the distributors or transferor corporation, they do not apply according to La. R.S. 47:287.86(I)(1). Accord La. R.S. 47:287.701(B). Accordingly, the trial court correctly determined that ConAgra was entitled to the NOLs as the acquiring corporation under La. R.S. 47:287.86(I)(1) and granted summary judgment in favor of the taxpayer, awarding it a refund of the amounts paid under protest as well as interests and costs.

DECREE

For these reasons, the trial court’s judgment is affirmed. Appeal costs in the amount of $1,918.00 are assessed against defendant, Cynthia Bridges, Secretary of the Louisiana Department of Revenue, State of Louisiana.

AFFIRMED.

        .See generally 26 U.S.C.A. § 338, entitled "Certain stock purchases treated as asset acquisitions.”

      .26 U.S.C.A. § 332 provides detailed tax consequences for complete liquidations of subsidiaries See also 26 U.S.C.A. § 381(a)(1).

        .See La. R.S. 47:287.2 et seq.

      . ConAgra notes it will only be entitled to use the NOLs if it has future Louisiana earnings within the time periods prescribed by law. See La. R.S. 47:287.86.


author: KLINE, J.

text:
    STATE of Louisiana v. Nevelle Holder BELL, Sr.
    No. 2010 CA 0583.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 29, 2010.

      Le’Anne H. Malnar, Amite, LA, for Plaintiff/Appellant State of Louisiana.
    Jasper Sargent Brock, IV, Livingston, LA, for Appellee/Defendant Nevelle Holder Bell, Sr. and nineteen thousand nine hundred and sixty dollars.
    Before KUHN, PETTIGREW and KLINE, JJ.

      . Judge William F. Kline, Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   KLINE, J.

12This is an appeal from a judgment rendered in favor of a claimant whose money was seized on belief that it was subject to forfeiture in connection with an alleged drug transaction. After a trial on the merits, the trial court ordered the State to return the seized funds. For the following reasons, we affirm the trial court judgment.

FACTS AND PROCEDURAL HISTORY

On July 13, 2008, Nevelle Holder Bell, Sr. was driving a rented vehicle on Interstate 12 when he was stopped by a state trooper for changing lanes without a signal. While Mr. Bell’s vehicle was being searched, a narcotics detection dog responded to an area under the driver’s seat. The investigating office found no drugs in the vehicle. He did, however, find a mesh bag containing four bundles of cash totaling $19,960.00. He also found an empty suitcase in the vehicle’s trunk. Mr. Bell was arrested and charged with violating La. R.S. 40:1041, which governs transactions involving proceeds from drug offenses. Mr. Bell, the vehicle, and the money were taken to the Livingston Parish jail. The record does not indicate whether Mr. Bell was ever prosecuted.

The State of Louisiana filed a Petition for Forfeiture in Rem; Mr. Bell answered the petition with a general denial. He also filed a motion for summary judgment, which was denied by the trial court. A bench trial was held on January 6, 2010, in which the trial court found that the State did not establish that the money was subject to forfeiture and ordered its return. Judgment was signed, and the State appealed.

The sole issue on appeal is whether the trial court erred in finding that the State did not sufficiently prove that the cash found in Mr. Bell’s vehicle was | .-¡subject to forfeiture pursuant to La. R.S. 40:2604, which defines the property subject to forfeiture.

THE PERTINENT STATUTES

Louisiana Revised Statute 40:2604 provides:

The following property is subject to seizure and forfeiture as contraband, derivative contraband, or property related to contraband under the provision of Section 4 of Article 1 of the Constitution of Louisiana:
(1) All controlled substances, raw materials, or controlled substance analogues that have been manufactured, distributed, dispensed, possessed, or acquired in violation of R.S. 40:961 et seq.
(2) All property that is either:
(a) Furnished or intended to be furnished by any person in exchange for a controlled substance in violation of R.S. 40:961 et seq.
(b) Used or intended to be used in any manner to facilitate conduct giving rise to forfeiture, provided that a conveyance subject to forfeiture solely in connection with conduct in violation of R.S. 40:961 et seq. may be forfeited only pursuant to the provisions of this Chapter.
(3) Proceeds of any conduct giving rise to forfeiture.

Louisiana Revised Statute 40:2612 A provides:

A judicial in rem forfeiture proceeding brought by the district attorney pursuant to a Notice of Pending Forfeiture or verified petition for forfeiture is subject to the provisions of this Chapter. If authorized by law, a forfeiture shall be ordered by the court in the in rem action.

Louisiana Revised Statute 40:2612 G provides:

The issue shall be determined by the court alone, and the hearing on the claim shall be held within sixty days after service of the petition unless continued for good cause. In a forfeiture case wherein no claim is timely filed pursuant to the provisions of this Chapter, the burden of proof to forfeit shall be probable cause. In a forfeiture ease, wherein a claim is timely filed pursuant to this Chapter, the burden of proof required to forfeit the defendant’s property shall be a preponderance of the evidence. (Emphasis added.)

STANDARD OF REVIEW

|4It is well-settled that a court of appeal may not set aside a finding of fact by a trial court in the absence of “manifest error” or unless it is “clearly wrong.” Lirette v. State Farm Insurance Company, 563 So.2d 850, 852 (La.1990). Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Id. When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Id.

DISCUSSION

When a claim is timely filed, as here, the State has the burden of proving its entitlement to forfeiture by a preponderance of the evidence. La. R.S. 40:2612 G. A preponderance of the evidence means evidence of greater weight or evidence which is more convincing than that offered in opposition. ODECO Oil & Gas Company v. Nunez, 532 So.2d 453, 457 (La.App. 1 Cir.1988). The first circuit has generated little jurisprudence on civil forfeiture under La. R.S. 40:2612 et seq. since the law was amended in 1997, changing the burden of proof from probable cause to a preponderance of the evidence when a claim is timely filed. See State v. Green, 42,253, pp. 3-4 (La.App. 2 cir. 6/20/07), 960 So.2d 1270, 1272, for a discussion on the amendment; see also State v. Robinson, 09-2135, p. 1 (La.App. 1 Cir. 5/7/10), 39 So.3d 850 (unpublished; table), where this court recognized that in a contested forfeiture- proceeding, the State has the burden of proving by a preponderance of the evidence the connexity between the seized property giving rise to the forfeiture and illegal drug activity. Id.

| Jn the present case, the State argues that it has produced sufficient evidence to show that probable cause existed for forfeiture of the money and to show that the money was connected to illegal drug activity. Probable cause, however, is not the standard. La. R.S. 40:2612 G. Even so, probable cause is defined as a reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspension. State v. Property Seized From Terrance Martin, 09-1417, p. 7 (La.App. 1 Cir. 3/30/10), 37 So.3d 1021,1028. It may be established by demonstrating, by some credible evidence, the probability that the money was in fact drug related which can be established by circumstantial or hearsay evidence. Id. 09-1417 at p. 8, 37 So.3d at 1028.

Here, the State argues that even though no drugs were found in the search of Mr. Bell’s vehicle, the $19,960.00 in cash was detected by a certified narcotic detection dog, which they argue, indicates that the money had been in the recent proximity to drugs. The State contends this large unexplained seemingly drug scented money in the vehicle combined with an empty suitcase in the trunk was enough to meet the State’s burden to show that the money was contraband. To bolster the State’s contention that the money was a product of illegal activity, it pointed to Mr. Bell’s two prior convictions for transporting narcotics with the intent to distribute. This totality of circumstances, the State claims, gives rise to the inference that the funds were connected to drug activity and thereby subject to forfeiture, establishing probable cause.

In support of his case, Mr. Bell testified that his company, Nevelle Bell d/b/a Bell Transportation, is in the business of delivering steel reels to Sugarland, Texas area. He testified that he and his employees primarily use cash to purchase fuel and other items because it saves money. He said that the cost of fuel is five cents per gallon, less if paid for with cash. He also testified that the cash found in the vehicle was an accumulation of money he was saving to purchase a trailer that he | r,intended to buy in Houston, but did not. He testified that he produced evidence to the investigating law enforcement officials of receiving $13,000.00 in cash from an earlier transaction and also had a record of receiving $10,000.00 from the sale of a piece of property. Mr. Bell also stated that he owns rental property, and his tenants regularly pay him in cash. Mr. Bell explained that he started his trucking company in 2004, and in 2006 he paid taxes on over $600,000.00. Mr. Bell also said that the empty suitcase was a non-issue because there is no evidence that the luggage ever contained drugs. He explained that he bought it at Wal-Mart, but had not transferred his clothing into the luggage.

In concluding that the State had not met its burden to show its entitlement to the money, the trial court found that even if there was a drug scent on the money, there was not enough evidence to tie Mr. Bell to the odor of drugs. It explained that Mr. Bell testified that he obtained the money from several sources and from different people. Finding that there was not enough evidence to connect Mr. Bell with illegal drug activity, the trial court ruled in favor of Mr. Bell and stated that the State’s evidence was insufficient to satisfy its statutory burden.

Even so, the trial court recognized in its oral reasons some inferences raised by the evidence. It pointed out that Mr. Bell’s convictions raised some alarms and that it recognized that having so much cash could be viewed as unusual. It said, however, that in the broad scheme of things, cash is often used “outside the IRS realm.” The trial court took into consideration the deposition testimony on the reliability of the use of certified narcotic dogs.

Additionally, the trial court heard corroborating testimony about Mr. Bell’s finances by the State’s expert. James M. McGill, an employee of the United States Drug Enforcement Administration, testified as an expert witness for the State. He testified that he had examined the documents in the course of his investigation of this matter. Mr. McGill testified that his review of the bank statements for Nevelle |7BeIl d/b/a Bell Transportation showed that large sums of money were deposited into his account. According to his records, $20,021,00 was deposited in February, $32,000.00 in March, and $41,000.00 in April. Mr. Bell further testified that he did pay taxes on $600,000.00 in a previous year. Another State expert, Dr. Kenneth Furton, stated via telephone deposition that studies have shown that over 90 percent of the currency circulating in the United States has been contaminated with trace evidence of illegal drugs. There is no indication in the record as to the quantity or type of contamination on the money taken from Mr. Bell’s vehicle.

After judging the credibility of the witnesses and the evidence introduced at trial, the trial court ruled that the State did not meet its burden to connect the money to illegal conduct. The trial court found that the State did not prove by a preponderance of the evidence a connexity between the seized property giving rise to the forfeiture and any alleged illegal activity-

After our careful review of the record herein, we conclude that the trial court’s factual findings are supported in the record and, therefore, are not manifestly erroneous or clearly •wrong. Thus, they cannot be overturned on appeal. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Accordingly, we affirm the judgment of the trial court.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court. The costs of this appeal in the amount of $1,286.50 are assessed against the State of Louisiana.

AFFIRMED

KUHN, J, Concurs.

      . The bills were in four separate stacks held together with rubber bands. Three of the stacks were of one hundred dollar bills, totaling sixty-one hundred dollars; the other stack contained forty-six ten-dollar bills, six hundred twenty-five twenty-dollar bills, and eighteen fifty-dollar bills.


author: HUGHES, J.

text:
    The NATURE CONSERVANCY v. UPLAND PROPERTIES, LLC and Marshall Investments Corporation.
    No. 2010 CA 0516.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 29, 2010.

      Monique M. Lafontaine, Robert W. Mouton, Jason M. Cerise, New Orleans LA, for Defendant/Appellant, Marshall Investments Corporation.
    Jay M. Jalenak, Jr., Troy J. Charpentier, Baton Rouge, LA, for Plaintiff/Appel-lee, The Nature Conservancy.
    Before PARRO, GUIDRY, and HUGHES, JJ.
   HUGHES, J.

12This is an appeal by Marshall Investments Corporation (MIC) from the grant of a confirmation of a default judgment in favor of The Nature Conservancy (TNC) and against appellant, MIC, and Upland Properties, LLC (Upland), in the amount of $456,564.80, plus interest and costs. For the reasons that follow, we reverse the confirmation of the default judgment against MIC and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

Upland was the owner of a 989-acre tract of land in St. Tammany Parish. Upland intended to improve and develop the land into a residential community known as Bedico Creek. The Bedico Creek project would affect wetlands located on the property. In such a ease, federal and state regulations require that land developers mitigate or offset the damages caused to the wetlands and require the developers to apply for a permit from the United States Army Corps of Engineers (the Corps). The permit necessary for the development of the Bedico Creek property required, among other things, that Upland contract with an off-site mitigation bank to fund the perpetual enhancement and management of 150 acres of pine flatwood/sa-vannah wetlands.

To fund the Bedico Creek project, Upland took out a construction loan with MIC. The loan documents were signed on March 17, 2005. The debt was secured by Mortgages, Security Agreements, and Assignments of Rents and Leases, which were filed and recorded in the St. Tammany Parish mortgage records.

Thereafter, to meet the permit’s requirement of enhancing and maintaining the wetlands, on May 26, 2005 Upland entered into a |/Mitigation Participation Agreement” with TNC, a conservation organization that protects and restores ecologically important lands and waters. Under the “Mitigation Participation Agreement,” TNC agreed to implement the mitigation required by the permit and Upland agreed to pay a certain sum, pursuant to a payment schedule.

Upland defaulted on both the construction loan with MIC and the “Mitigation Participation Agreement” with TNC. In accordance "with LSA-R.S. 9:5136, et seq., MIC foreclosed on the property and later purchased it at a public auction, which was held pursuant to executory process by order of the United States District Court for the Eastern District of Louisiana. The Act of Sale is dated June 4, 2008 and provides that MIC will acquire all of Upland’s “rights (but not its obligations) under any documents” and “all permits, licenses, franchises, certificates and other rights and privileges obtained in connection with the Land.” Although MIC held mortgages on the property, the subsequent contract, whereby TNC conveyed to Upland the use of the mitigation credits, was unsecured.

Thereafter, on December 10, 2008 TNC filed a “Petition for Damages from Breach of Contract and Unjust Enrichment” against both Upland and MIC for the remaining balance Upland owed it for the wetlands mitigation credits. TNC moved for a default judgment against both parties. That default judgment was confirmed after a hearing on March 25, 2009 and a judgment of $456, 564.80 was rendered against Upland and MIC, in solido. In written reasons for judgment, the trial court held that TNC had established a prima facie case against MIC under the theories of unjust enrichment and third-party beneficiary of a contract.

|4MIC filed a motion for new trial, which was denied by a judgment signed November 3, 2009. MIC appeals and asserts two assignments of error:

(A) The District Court Erred in Granting a Default Judgment to the Petitioner/Appellee Against Marshall Investments Corporation (“MIC”). The Petitioner/Appellee Failed to Establish a prima facie Case of Unjust Enrichment Against MIC as Required by Louisiana Code of Civil Procedure Article 1702(A) Because Cause Exists for the Alleged Unjust Enrichment and the Petitioner/Appellee has Another Remedy Available Under Law.
(B) The District Court Erred in Granting a Default Judgment to the Petitioner/Appellee Against MIC. The Petitioner/Appellee Failed to Establish a prima facie Case That it is a Third-Party Beneficiary of a Permit Between Upland Properties, LLC and the Army Corps of Engineers as Required by Louisiana Code of Civil Procedure Article 1702(A). The Permit Does Not Express an Intent to Benefit any Third-Party.

LAW AND ANALYSIS

To confirm a default judgment, the plaintiff must present proof of the demand sufficient to establish a prima facie case. LSA-C.C.P. art. 1702(A). A prima facie case is established if the plaintiff presents competent evidence sufficient to prove the essential elements of the petition as fully as if each allegation had been specifically denied. Clary v. D’Agostino, 95-0447 (La.App. 1st Cir.12/15/95), 665 So.2d 792, 793. Stated differently, the plaintiff must present competent evidence that convinces the court that it is more probable than not that he would prevail at a trial on the merits. See Grevemberg v. G.P.A. Strategic Forecasting Group, Inc., 06-0766 (La.App. 1st Cir.2/9/07), 959 So.2d 914, 917-18.

Appellate review of a confirmation of a default judgment is limited to a determination as to the sufficiency of the evidence offered. Grevemberg v. G.P.A., 959 So.2d at 918. And while there is a presumption as to the sufficiency of the evidence if the judgment recites that the plaintiff has | r,produced same, that presumption does not apply where the testimony is transcribed and contained in the record, as in this case. See Bates v. Legion Indem. Co., 01-0552 (La.App. 1st Cir.2/27/02), 818 So.2d 176,179.

1. Unjust Enrichment

Louisiana Civil Code article 2298 provides, in pertinent part, that:

A person who has been enriched without cause at the expense of another person is bound to compensate that person. The term “without cause” is used in this context to exclude eases in which the enrichment results from a valid juridical act or the law. The remedy declared here is subsidiary and shall not be available if the law provides another remedy for the impoverishment or declares a contrary rule.

The root principle of an unjustified enrichment is that the plaintiff suffers an economic detriment for which he should not be responsible, while the defendant receives an economic benefit for which he has not paid. Board of Supervisors of Louisiana State University v. Louisiana Agricultural Finance Authority, 2007-0107 (La.App. 1st Cir.2/8/08), 984 So.2d 72; Scott v. Wesley, 589 So.2d 26, 27 (La.App. 1st Cir.1991). Unjust enrichment is only applicable to fill a gap in the law where no other remedy is provided for by law. Louisiana National Bank of Baton Rouge v. Belello, 577 So.2d 1099, 1102 (La.App. 1st Cir.1991); see also Coastal Environmental Specialists, Inc. v. Chem-Lig International, Inc., 00-1936 (La.App. 1st Cir.11/09/01), 818 So.2d 12,19.

The Louisiana Supreme Court in Minyard v. Curtis Products, Inc., 251 La. 624, 652, 205 So.2d 422, 432 (1967), set forth five prerequisites a plaintiff must prove to prevail under the theory of unjust enrichment:

1) an enrichment;
2) an impoverishment;
3) a connection between the enrichment and the impoverishment;
4) an absence of justification or cause for the enrichment and the impoverishment; and
5) no other available remedy at law for the impoverished party.

|fiMIC alleges that unjust enrichment principles do not apply to this case because there is justification or cause for the enrichment and the impoverishment, and there are other remedies at law available to TNC. Specifically, MIC argues that TNC’s impoverishment (preserving and maintaining 150 acres of wetlands) was justified or caused by the promise of Upland to pay a certain sum of money. MIC argues that the contract between Upland and TNC is a valid juridical act and therefore precludes TNC from obtaining a judgment against MIC under the theory of unjust enrichment. Moreover, TNC had the legal remedy of filing suit against Upland and actually did successfully obtain a judgment against Upland for the full balance of the contract.

We find that the evidence presented by TNC at the hearing to confirm the default judgment supports MIC’s position that the fourth and fifth prerequisites of an unjust enrichment are not fulfilled in this case. The “Mitigation Participation Agreement” is a valid juridical act. As such, a valid juridical act caused TNC’s impoverishment and Upland’s enrichment, barring the applicability of unjust enrichment principles. While we agree that ultimately, MIC received a benefit, MIC did so through its rights as mortgagee and purchaser at a foreclosure sale of the Bedico Creek property.

Moreover, TNC also filed suit and obtained a judgment against Upland. While TNC may be unable to recover the unpaid balance of the contract pursuant to that judgment, we cannot overlook the fact that there was an obvious available legal remedy for TNC.

2. Third-Party Beneficiary

Louisiana Civil Code article 1978 provides that:

|7A contracting party may stipulate a benefit for a third person called a third party beneficiary.
Once the third party has manifested his intention to avail himself of the benefit, the parties may not dissolve the contract by mutual consent without the beneficiary’s agreement.

While the written reasons for judgment state that “TNC is clearly a third party beneficiary of the provisions of the permit” issued by the Corps to Upland, TNC’s argument in brief to this court is that MIC is the third-party beneficiary of the mitigation agreement between TNC and Upland. To be thorough, we will address both positions.

This court, in Paul v. Louisiana State Employees’ Group Ben. Program, 1999-0897 (La.App. 1st Cir.5/12/00), 762 So.2d 136, 140, held that:

The Louisiana Civil Code provides that a contracting party may stipulate a benefit for a third person called a third-party beneficiary. LSA-C.C. art. 1978. Under Louisiana law, such a contract for the benefit of a third party is referred to as a “stipulation pour autrui.” See, e.g., Whitney Nat’l Bank v. Howard Weil Fin. Corp., 93-1568 (La.App. 4th Cir.1/27/94), 631 So.2d 1308, 1310. A stipulation pour autrui is never presumed. Rather, the intent of the contracting parties to stipulate a benefit in favor of a third party must be made manifestly clear. Homer Nat’l Bank v. Tri-District Dev. Corp., 534 So.2d 154, 156 (La.App. 3rd Cir.1988), writ denied, 536 So.2d 1236 (La.1989). Additionally, to establish a stipulation pour autrui, the third-party relationship must form the consideration for a condition of the contract, and the benefit may not be merely incidental to the contract. Concept Design, Inc. v. J.J. Krebs & Sons, Inc., 96-1295 (La.App. 4th Cir.3/19/97), 692 So.2d 1203, 1205-06. The party demanding performance of an obligation pursuant to a stipulation pour autrui bears the burden of proving the existence of this obligation. See LSA-C.C. arts. 1831 and 1981.

As such, a stipulation pour autrui is intended to give to a third party a cause of action against an obligor but is not intended to allow an obligor to force a benefit on a third party. The stipulation for another must be beneficial to the other, not onerous. TNC, therefore, cannot force MIC into the position of a third-party beneficiary for the purpose of binding MIC to 18pay the debt of Upland. TNC could not recover from MIC under the theory that MIC is a third-party beneficiary of the mitigation agreement between TNC and Upland. MIC was not a party to the contract between TNC and Upland and was not contemplated as a third-party beneficiary in the traditional sense.

Nor can TNC force MIC to pay Upland’s contractual obligation under the mitigation agreement by way of the permit issued by the Corps. The potentially applicable language in the permit reads as follows:

7. The permittee has agreed to compensate for unavoidable impacts to wetland functions by:
c. Contracting with an appropriate off-site mitigation area/bank in St. Tammany Parish to fund the perpetual enhancement and management of 150 acres of pine flatwood/savannah wetlands. Proof of payment shall be provided to the Corps prior to the initiation of construction activities on site or within one year of permit issuance whichever occurs first. The permittee shall include a copy of this permit with the contribution sent to the bank sponsor.

Even assuming that the permit issued to Upland by the Corps is a “contract,” as contemplated by LSA-C.C. art. 1978, and that there is sufficient language in the permit to designate TNC as a third-party beneficiary, MIC cannot be forced to assume the obligation of Upland under the permit. MIC was not a party to the contract and obtained the property through foreclosure and public auction and thus, without any duty to assume the obligations of Upland. TNC’s remedy as a third-party beneficiary would be against Upland (or the Corps), and as noted, TNC has already obtained a judgment against Upland. Here again, MIC was not a party to any contract between Upland and the Corps and does not “step into the shoes” of Upland because it succeeded Upland through foreclosure and public auction.

|9CONCLUSION

We conclude that TNC cannot recover against MIC under any of the theories advanced. TNC had a direct remedy against Upland and in fact obtained a judgment against Upland pursuant to its contract. MIC is therefore not hable under a theory of unjust enrichment.

Nor can MIC be forced into the position of a third-party beneficiary of the contract between Upland and TNC in order to require it to assume the obligations of Upland. Nor, even if TNC is considered the beneficiary of an agreement between Upland and the Corps, can MIC be forced to assume the obligations of Upland when it was not a party to the contract and obtained the property through foreclosure and public auction.

Accordingly, we reverse the judgment appealed from against MIC and remand this case to the district court for further proceedings. All costs of this appeal are to be paid by TNC.

REVERSED AND REMANDED.

      . Upland is not a party to this appeal.

      . Comment (B) of the 2000 Revision Comments to LSA-C.C. art. 395 defines a "juridical act” as "a lawful volitional act intended to have legal consequences. It may be a unilateral act, such as an affidavit, or a bilateral act, such as a contract. It may be onerous or gratuitous.”