author: GAIDRY, J.

text:
    Kim MANGERCHINE, et al. v. Dawn Oglesby REAVES, et al.
    No. 2010 CA 1052.
    Court of Appeal of Louisiana, First Circuit.
    March 25, 2011.
    Rehearing Denied April 28, 2011.

      Wayne A. Collier, Slidell, LA, for Plaintiffs/Appellants Kim Mangerchine and Lawrence P. Mangerchine.
    Thomas J. Eppling, Lance E. Harwell, Ashley E. Boyd, Metairie, LA, for Defendant/Appellee Travelers Indemnity of Connecticut.
    Before CARTER, C.J., GAIDRY and WELCH, JJ.
   GAIDRY, J.

|2The plaintiff homeowners, husband and wife, appeal a summary judgment dismissing their claims against their homeowners insurer for property damage and personal injury alleged to have resulted from hidden redhibitory defects at the time they purchased their home. For the following reasons, we reverse the judgment.

FACTS AND PROCEDURAL HISTORY

The plaintiffs, Lawrence P. Mangerchine and Kim C. Mangerchine, purchased immovable property, including a house, from Robert F. Reaves and Dawn Oglesby Reaves on July 26, 1996. The defendant, Travelers Indemnity of Connecticut (Travelers), subsequently issued a policy of homeowners insurance to the plaintiffs on July 26, 1997, providing property damage coverage from that date through July 26, 1998.

On March 30, 1999, the plaintiffs instituted this action for damages against the sellers, the involved real estate agencies, and Travelers, alleging that the house had redhibitory defects, that the sellers and the real estate agencies knew or should have known of such defects and failed to disclose them to the plaintiffs, and that they sustained property damages and personal injury caused by the defective conditions. In their verified petition, the plaintiffs characterized the defects as susceptibility to flooding and a black mold infestation causing structural damage to the joists beneath the house. The plaintiffs also sought rescission of the sale.

Travelers filed its answer on July 6, 1999, denying any liability under its policy. It further specifically alleged that coverage was excluded for the plaintiffs’ claims of redhibition, personal injury and other damages, that [¡¡there was no “occurrence” under the policy, and that the plaintiffs were not insured for them alleged losses.

On April 18, 2000, Travelers filed a motion for summary judgment, seeking its dismissal on the grounds that its policy did not provide coverage for any of the plaintiffs’ claims. The motion was fixed for hearing on June 26, 2000.

On June 26, 2000, the plaintiffs filed an amended petition, verified by Ms. Manger-chine’s affidavit, adding the allegation that the house’s defective condition and hidden decay caused the collapse of the floor joists and the floor itself. On the same day, the trial court heard the motion for summary judgment, and following the hearing took the matter under advisement for determination.

On July 11, 2000, the trial court issued its written reasons for judgment, ruling that the motion for summary judgment would be denied. Its judgment denying the motion was signed on July 27, 2000.

On July 10, 2009, Travelers filed a second motion for summary judgment, seeking the dismissal of the plaintiffs’ claims against it on the grounds that the plaintiffs lacked standing to continue to assert their claims, as they filed for bankruptcy in 2002 and no longer owned the immovable property at issue, and that the damages preexisted the issuance of its policy.

Travelers’s second motion for summary judgment was heard on September 16, 2009, and the trial court granted the motion. Its judgment granting the motion (but not dismissing Travelers as a defendant) was signed on September 25, 2009. The plaintiffs filed a motion for new trial, and, after a hearing, that motion was denied by judgment signed on January 6, 2010.

|4The plaintiffs then instituted this devol-utive appeal. On September 27, 2010, this court issued an interim order remanding this matter to the trial court for the purpose of signing a valid judgment on the motion for summary judgment, as the trial court’s original judgment of September 25, 2009 lacked the appropriate decretal language dismissing the plaintiffs’ claims against Travelers. On October 6, 2010, the trial court signed a revised judgment dismissing the plaintiffs’ claims against Travelers.

ASSIGNMENTS OF ERROR

We summarize the plaintiffs’ assignments of error on the part of the trial court as follows:

(1) The trial court committed legal error in applying the “occurrence” (injury-in-fact) trigger theory of coverage rather than the “manifestation” trigger theory of coverage.

(2) The trial court erred in holding that a claim in redhibition against the seller of defective property and a claim under a homeowners’ policy for property damage manifested during the policy period are mutually exclusive.

(3) The trial court erred in failing to find that the petition set forth factual allegations that the plaintiffs did not discover the property damage until April 1998, when they first notified Travelers.

(4) The trial court erred by not permitting the plaintiffs to amend their petition to cure any ambiguity in its allegations.

DISCUSSION

Standard of Review: Summary Judgment

Summary judgment is subject to de novo review on appeal, using the same standards applicable to the trial court’s determination of the issues. Berard v. L-3 Communications Vertex Aerospace, LLC, 09-1202, p. 5 (La.App. 1st Cir.2/12/10), 35 So.3d 334, 339-40, unit denied, 10-0715 (La.6/4/10), 38 So.3d 302. We are authorized and, indeed, required to render a judgment that is “just, legal, and proper upon the record on appeal.” La. C.C.P. art. 2164; Jackson Nat'l Life Ins. Co. v. Kennedy-Fagan, 03-0054, p. 5 (La.App. 1st Cir.2/6/04), 873 So.2d 44, 48, unit denied, 04-0600 (La.4/23/04), 870 So.2d 307.

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).

Interpretation of an insurance policy is usually a legal question that can be properly resolved by summary judgment. Doe v. Breedlove, 04-0006, p. 7 (La.App. 1st Cir.2/11/05), 906 So.2d 565, 570. However, summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Gaylord Chem. Corp. v. Pro-Pump, Inc., 98-2367, pp. 3-4 (La.App. 1st Cir.2/18/00), 753 So.2d 349, 352.

General Principles of Insurance Policy Interpretation

Whether a contract is ambiguous or not is a question of law. Bonvillain Builders, LLC v. Gentile, 08-1994, p. 5 (La.App. 1st Cir.10/30/09), 29 So.3d 625, 629, unit denied, 10-0059 (La.3/26/10), 29 So.3d 1264. The starting point in the analysis of an insurance policy is the principle that an insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code. LeBlanc v. Aysenne, 05-0297, p. 3 (La.1/19/06), 921 So.2d 85, 89.

The words of a contract must be given their generally prevailing meaning. La. C.C. art. 2047. Words susceptible of different meanings must be interpreted as having the meaning that best conforms to the object of the contract. La. C.C. art. 2048. A provision susceptible of different meanings must be interpreted with a meaning that renders it effective and not with one that renders it ineffective. La. C.C. art. 2049. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050.

Ambiguity of a term or clause in an insurance policy will also be resolved by ascertaining how a reasonable insurance policy purchaser would construe the clause at the time the insurance contract was entered. Halphen v. Borja, 06-1465, p. 4 (La.App. 1st Cir.5/4/07), 961 So.2d 1201, 1205, writ denied, 07-1198 (La.9/21/07), 964 So.2d 338. Even so, an insurance pohcy should not be interpreted in an unreasonable or strained manner so as to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Magnon v. Collins, 98-2822, p. 7 (La.7/7/99), 739 So.2d 191, 196.

A contract executed in a standard form of one party must be interpreted, in case of doubt, in favor of the other party. La. C.C. art. 2056. In the specific context of insurance, the rule is that if, after applying the other general rules of construction, an ambiguity remains, the ambiguous contractual provision is to be construed against the insurer who issued the | ypolicy and in favor of coverage for the insured. La. Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-0911 (La.1/14/94), 630 So.2d 759, 764. For a genuine ambiguity to exist and for this rule of strict construction to apply, an insurance policy must be not only susceptible to two or more interpretations, but each of the alternative interpretations must be reasonable. Bonin v. Westport Ins. Corp., 05-0886, p. 6 (La.5/17/06), 930 So.2d 906, 911.

When Was Coverage Triggered Under the Travelers Policy?

In its oral reasons for judgment denying the plaintiffs’ motion for new trial on the summary judgment in favor of Travelers, the trial court explained the basis of its original ruling on the motion for summary judgment:

I feel like the original decision was in agreement with the current state of the law. I feel that the plaintiff [sic] has the burden in this matter of establishing when the triggering event took place and that it took place during Travelers[s] policy period. It’s my opinion that the plaintiff [sic ] in this matter has pled that the defect that has created this problem preexisted their ownership of this house and has filed a redhibition claim. I do not feel that it’s appropriate that a redhibition action would also go forward with a claim against the homeowners insurance. That’s the basis of the Court’s ruling.

The “trigger” of coverage is the event or condition that determines whether (and when) a policy responds to a specific claim. Cole v. Celotex Corp., 599 So.2d 1058, 1075 n. 50 (La.1992). It describes what must happen, according to the terms of an insurance policy, for the potential of coverage to arise. David T. Grand, Jr., Comment, Nailing Down Occurrence Triggers for Property Damage in the Wake of Redevelopment — Why a Distinction Should Be Made Between First and Third Party Policies, 68 La. L.Rev. 605, 606 n. 9 (2008), citing Montrose Chem. Corp. of Cal. v. Admiral Ins. Co., 10 Cal.4th 645, 42 Cal.Rptr.2d 324, 913 P.2d 878, 880 n. 2 (1995).

| sCourts nationwide have developed and applied a number of different trigger theories, applicable to various factual situations and coverage types, to address the complicated issue of coverage of continuous and progressive property damage with delayed onset or manifestation. Chandra Lantz, Note, Triggering Coverage of Progressive Property Loss: Preserving the Distinc tions Between First-and Third-Party Insurance Policies, 35 Wm. & Mary L.Rev. 1801, 1801-03 (1994). The most common of these recognized in Louisiana are:

(1) The exposure theory: Coverage is triggered when the property is exposed to the harmful conditions during the policy period;
(2) The manifestation theory: Coverage is triggered when the damage manifests itself and is discovered or should have been discovered during the policy period;
(3) The injury-in-fact theory: Coverage is triggered when damage actually occurs in the policy period, regardless of when the damage has become manifest; and
(4) The continuous or triple trigger theory: Coverage is triggered at the time of initial exposure to the harmful condition, all times of continuing exposure, and the time of manifestation of the damage.

See Cole, 599 So.2d at 1075-76, and Grand, supra, at 609-10. See also Lantz, supra, at 1804-05; and 7 Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 102:22 (3rd ed.2010).

The determination of when coverage for a loss is triggered by an event should not be made without initial analysis of the policy language, as the policy expresses the parties’ mutual intent and its language determines the | imperative conditions upon which the insurer’s obligation to indemnify the insured is based. See Lantz, supra, at 1808-09. The application of the appropriate theory of the trigger of coverage also depends upon the specific policy language of the particular policy at issue, as the various trigger theories developed by the courts are themselves direct outgrowths of the interpretation of relevant terms used in policies, such as “occurrence.” See Lantz, supra, at 1803. Accordingly, we must first examine the relevant language of the Travelers policy.

The policy period stated in the declarations page is July 26, 1997, to July 26, 1998. Section I of the policy, entitled “Property Coverages,” contains the policy terms and provisions governing first-party coverage for property damage in favor of the insureds. Coverage A under Section I provides coverage for the insureds’ residence on the insured premises, including any attached structures. Under its general “Conditions” section, the policy provides that it applies “only to loss in Section I [“Your Property”] ... which occurs during the policy period shown in the Declarations.” (Emphasis added.) Notably, the losses that are covered are not described in terms of “property damage” caused by an “occurrence,” terms defined in the policy and used in Section II, ‘Your Liability,” but rather in terms of “direct physical loss” caused by certain “perils insured against.”

1 ^Section I provides a number of “Additional Coverages,” including Additional Coverage 11, entitled “Collapse.” This provision provides that Travelers covers the insureds “for direct physical loss to covered property involving collapse of a building or any part of a building” caused by certain enumerated perils, including “hidden decay” and “hidden insect or vermin damage.” (Emphasis added.)

The policy provides that certain types of “loss” to the insured residence are excluded from coverage under Section I, such as loss involving “collapse, other than as provided in Additional Coverage 11,” as well as loss caused by “wear and tear, marring, deterioration;” “inherent vice, latent defect, mechanical breakdown;” “smog, rust, mold, wet or dry rot; ” and “settling, cracking, shrinking, bulging or expansion of pavements, patios, foundations, walls, floors, roofs or ceilings.” (Emphasis added.) Other “General Exclusions” include “water damage,” including damage caused by “flood” or “water below the surface of the ground.” The applicability of the foregoing exclusions to the plaintiffs’ claims was not placed at issue by Travelers in its second motion for summary judgment. The sole coverage issue addressed by both the motion and the trial court’s judgment was whether the plaintiffs’ claimed loss occurred prior to the issuance of the Travelers policy. Accordingly, we need not address the merits of any applicable exclusions at this time.

“Loss” and “direct physical loss” are not defined in the policy; accordingly, those terms must be given their ordinary, generally-accepted meanings. See La. C.C. art. 2047. In general, a “loss” means a | ^“destruction,” “ruin,” or “deprivation.” Merriam-Webster’s Collegiate Dictionary 736 (11th ed.2008). Another definition of “loss,” in the specific context of insurance, is “the amount of an insured’s financial detriment by ... damage that the insurer is liable for.” Id. The determination of when “damage” to property occurs, strictly speaking, involves only an objective analysis of the time at which actual physical change or injury to the property takes place. The term “loss,” on the other hand, combines the element of physical damage to the property with that of corresponding reduction in patrimony from the subjective standpoint of the insured.

The terms “loss” and “damage,” as used in insurance policies, are not necessarily synonymous. See Corban v. United Services Auto. Ass’n, 20 So.3d 601, 612 (Miss.2009). A “loss” under the property coverage of a homeowners’ policy is incurred by an insured and typically, but not always, follows “damage” to the insured property. Id. Physical damage is only one cause of “physical loss” of property; for example, a person can suffer the physical loss of property through theft, without any actual physical damage to the property. Id. at 612 n. 17.

The Travelers policy provides that the insureds have certain duties in the event of a “loss to covered property.” The insureds are required to “give prompt notice to [Travelers].” Additionally, within 60 days after request by Travelers, the insureds must send a “signed, sworn proof of loss which sets forth, to the best of [them] knowledge and beliefl,] ... the time and cause of loss.” In the event that the insureds decide to sue Travelers for a loss covered under the policy, the policy states that “[l]egal action taken against [Travelers] must begin within two years after the date of loss.”

l12In order to report a “loss” under their policy, the insureds must obviously be aware of that loss. The phrases “time of loss” and “date of loss” are not expressly defined in the Travelers policy. However, the insureds’ duty to provide the “time of loss” in them proof of loss is framed in terms of the insureds’ subjective “knowledge and belief” as to that time. As one commentator explains:

Unlike third-party insurance, first-party insurance policies contain notice and suit limitation provisions that are quite specific....
The policy language also requires that there be some degree of “knowledge and belief’ on behalf of the insured as to the time and origin of the loss when submitting a claim for indemnification. As a result, to bring a claim under a first-party policy the insured must have knowledge of the loss and a reasonable belief as to the time and origin of the loss. In addition, the insured must be prepared to bring suit on any coverage disputes regarding that loss within [the time period stated in the policy]. These provisions and their corresponding limitations and public policy ramifications have encouraged many courts to apply the manifestation trigger as the trigger that best harmonizes the policy intentions. By doing so, the preclusive effect of an untimely claim by the insured is minimized. [Footnotes omitted.]

Lantz, supra, at 1810-11.

To be covered under the Travelers policy, the insureds’ property loss must “occur” during the policy period. Significantly, the word “occur” is synonymous not only with “happen” (in the sense of “to come into existence”) but also in another sense with “appear.” Merriam-Webster’s Collegiate Dictionary 858 (11th ed.2008). “Appear” is defined as “to become evident or manifest.” Id. at 60. “Manifest,” used as an adjective as above, is synonymous with “obvious” and “evident.” Id. at 755. As a verb, it is defined as “to make evident or certain by showing or displaying,” and is synonymous with “show.” Id. at 756.

|13We conclude that the interpretation of the term “occurs,” used in Coverage A, Section I of the Travelers policy, as meaning “appears” or “becomes evident” is just as reasonable, if not more so, as an interpretation of “occurs” to mean “happens” or “comes in existence.” Thus, the term is ambiguous as a matter of law, and the former interpretation, more favorable to the insured, should apply here.

Commentators have recommended that the choice of a particular trigger theory should take into account whether first-party insurance coverage or third-party insurance coverage is involved. See Grand, supra, at 608, and Lantz, supra, at 1808. We agree that that circumstance is relevant, in that it bears upon the mutual intent of the parties and the specific purpose of the particular coverage. As has been aptly observed, “a difference in risk results in different policy language and different expectations of the contracting parties, and demands a different analysis to determine whether coverage has been triggered.” Grand, supra, at 628. In the case of first-party property coverage, the cited commentator makes the following observations and recommendations:

When a homeowner initiates a claim against his homeowner’s insurance carrier, coverage should be triggered when the homeowner discovered or reasonably should have discovered the damage. Application of the manifestation theory-in this context complies with the policy language of the standard homeowner’s policy and conforms with the expectation a typical homeowner has in looking to the insurer to whom he is paying premiums to cover such damage.
If, however, the homeowner believes such damage is caused by a construction defect resulting from a contractor’s negligence, then the homeowner could bring an action directly against the contractor. In such a case, the contractor’s CGL carrier would be looked to for coverage by the contractor in the event liability was imposed upon him. On the other hand, the homeowner’s first[-]party policy could pay the insured homeowner and thereafter be subrogated to the homeowner’s right to file a negligence claim against the contractor. In either case, because the CGL policy should provide coverage against |14the contractor’s liability, an injury-in-fact analysis should be applied to determine when damage actually occurred, thus triggering coverage. In addition, if the evidence is such that the damage actually occurred and continued to occur, as in the case of water or mold damage, then the continuous injury trigger should be utilized to allocate liability among all third[-]party liability insurers who provided coverage during this period. [Footnotes omitted.]

Id. at 628-29.

A review of Louisiana jurisprudence involving third-party claims for construction defects under commercial general liability (CGL) policies shows that the manifestation theory is the most generally-accepted trigger theory for such claims. See, e.g., Korossy v. Sunrise Homes, Inc., 94-473 through 94-502, p. 17 (La.App. 5th Cir.3/15/95), 653 So.2d 1215, 1226, writs denied, 95-1522 (La.9/29/95), 660 So.2d 878, 95-1536 (La.9/29/95), 660 So.2d 878; St. Paul Fire & Marine Ins. Co. v. Valentine, 95-0649, p. 5 (La.App. 1st Cir.11/9/95), 665 So.2d 43, 46, writ denied, 95-2961 (La.2/9/96), 667 So.2d 534; Oxner v. Montgomery, 34,727, 34,766, pp. 9-12 (La.App. 2nd Cir.8/1/01), 794 So.2d 86, 92-94, writ denied, 01-2489 (La.12/7/01), 803 So.2d 36; and cases cited therein. But the issue is far from settled in Louisiana, and there is considerable inconsistency in the jurisprudence involving damage claims arising from construction defects under CGL policies. In short, the manifestation theory has not been uniformly adopted in such cases as a bright line rule. See, e.g., Orleans Parish School Bd. v. Scheyd, Inc., 95-2653, pp. 5-7 (La.App. 4th Cir.4/24/96), 673 So.2d 274, 277-78.

The plaintiffs cite the Oxner case and other cases involving CGL policies as persuasive authority for application of the manifestation theory in 11Bthis case. While we agree that some of the factual circumstances and considerations addressed in those cases are relevant to determination of this case, we do not find their adoption of the manifestation theory conclusive, for the simple reason that first-party property coverage, with different policy language, is involved here. Those cases are therefore distinguishable on their facts from the present case.

Commentators have emphasized that the manifestation theory may be inappropriate in cases involving third-party liability coverage and that the injury-in-fact theory is most consistent with the language of liability policies, which generally distinguish between the “accident” or “occurrence” (the causative event) and resulting property damage. See Grand, supra, at 621-26, and Lantz, supra, at 1830-34. If the manifestation theory has been found to be appropriate in Louisiana cases involving third-party liability coverage, then it should seemingly be even more appropriate in first-party property insurance cases, for the reasons discussed herein. In its brief, Travelers seems to implicitly concede that the manifestation theory applies, by urging that the plaintiffs’ own petition confirms that “the alleged damages had already manifested at the time of the sale of the property, July of 1996.” (Emphasis added.)

Travelers cites the case of Davidson v. United Fire & Cas. Co., 576 So.2d 586 (La.App. 4th Cir.1991), in support of the proposition that the plaintiffs bore the burden of proving when the “damage” to their residence actually occurred. Davidson involved first-party property coverage under a homeowner’s policy, as in the present case. The relevant policy language was essentially the same as that of the Travelers policy in this case. The insureds in Davidson sued their homeowners’ insurer for termite damage following their discovery of a termite infestation. Although the insured did hanot discover the termite infestation itself until 12 days after the issuance of the policy, they had observed ceramic tiles falling from a wall in a bathroom one to two months prior to the discovery of the infestation, later shown to have been caused by termite damage inside the wall. The insureds argued that because the termite damage or “collapse” was hidden until their discovery of the infestation, the actual time it occurred was not susceptible of proof, and the exposure theory or continuous trigger theory should be applied to find coverage. Id at 589.

The court in Davidson disagreed with the cases cited by the insureds in support of their position, pointing out that those cases involved third-party claims under liability coverage and relied upon the specific policy definition of “occurrence” to determine when that liability coverage was triggered. Id. at 590. The court noted that the covered peril at issue was not an “occurrence” as defined in the liability portion of the homeowners’ policy, but rather a “collapse,” and that the terms “occurrence” and “collapse” were not synonymous. Id. The court held that under the first-party property coverage the “collapse” was the event that triggered coverage, rather than exposure. For purposes of its analysis, the court assumed that the extensive termite damage constituted a “collapse” under the policy and held that the insureds had the burden of proving that the collapse occurred during the policy period. Id. The court held that the evidence showed that the extensive damage could not have taken place within the 12-day period between issuance of the policy and the insureds’ discovery of the termite infestation, and affirmed the trial court’s judgment in favor of the insurer. Id. at 590-91.

Without expressly saying so, Travelers seems to suggest that the decision in Davidson supports the application of the injury-in-fact theory |17rather than the manifestation theory to determine the trigger of coverage. We disagree. The court in Davidson did not identify the particular trigger theory employed, other than to state that coverage was triggered by the “collapse,” which it equated with the extensive termite damage. While that damage was hidden until some point in time, the court emphasized that “[t]he falling tiles occurred prior to discovery of the termites.” Id. at 591. Thus, the falling of the tiles constituted a manifestation of the hidden damage that occurred prior to issuance of the policy, and the ultimate result in Davidson is fully compatible with application of the manifestation theory. To the extent that Davidson may stand for application of the injury-in-fact theory, we disagree with its rationale.

Taking into account all of the foregoing considerations, we conclude that the manifestation theory is applicable under the specific policy language and the type of coverage involved here. The manifestation theory best accords not only with one reasonable and generally-accepted meaning of the term “occurs,” as that verb is used in this policy, but also with a reasonable interpretation of the policy that supports a finding of coverage, rather than one precluding coverage. The phrase “time of loss,” as used in the policy’s reporting obligation on the part of the insureds, should obviously relate to the time of the insureds’ discovery of their loss.

Additionally, the policy’s coverage for “collapse” caused by “hidden decay” under Additional Coverage 11 is entirely consistent with the manifestation theory, the “collapse” being an external manifestation of the decay. The application of the manifestation theory also eliminates the difficult factual and evidentiary issue of determining when hidden property damage actually occurs in a strict physical sense. James Pest Control, Inc. v. Scottsdale Ins. Co., 99-1316, p. 12 (La.App. 5th Cir.6/27/00), 765 So.2d 485, 491, writ denied, 00-2285 (La.10/27/00), 772 So.2d 657. See also Grand, supra, at 625. This serves the interests of both the insured and the insurer by promoting certainty as to the insured status of a loss. In the case of first-party property coverage such as that involved here, it also promotes the public policy disfavoring prescription and underpinning the doctrine of contra non valentem by delaying the commencement of the prescriptive period available to insureds damaged by hidden, insidious perils. See Lantz, supra, at 1814 and 1834.

In so holding, we emphasize that we are neither pronouncing a general or bright-line rule nor advocating the general application of the manifestation trigger theory to all homeowners’ policies or first-party property damage coverages. Careful analysis of the policy language, considered in light of the type of coverage, the parties’ reasonable expectations, and public policy, must remain the basis for determining the proper trigger theory applicable in any particular case.

The plaintiffs’ first assignment of error has merit with regard to the appropriate trigger theory applicable here as a matter of law. However, this alone does not resolve the issue of the correctness of summary judgment in this case. It is not clear from the trial court’s reasons for judgment that it in fact rejected the manifestation theory, and proper application of the theory depends upon the content of the pleadings, affidavits, and other evidence in the record.

Is the Date of Loss Undisputed?

Having determined that the manifestation theory applies to the policy coverage at issue, we must next determine whether there is genuine issue of 119material fact as to whether the trigger of coverage fell within the policy period. That is, we must determine whether there is genuine issue of material fact as to whether the damages “occurred,” or first became manifest or evident, between July 26,1997 and July 26,1998.

Louisiana Code of Civil Procedure article 891 requires that the petition include a “short, clear, and concise statement of all causes of action” and “the material facts of ... the transaction or occurrence that is the subject matter of the litigation.” A fact is “material” when its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. Louisiana Code of Civil Procedure article 860 explains that “[f]or the purpose of testing the sufficiency of a pleading, allegations of time and place are material and shall be considered as all other allegations of material matter.”

In their original petition, the plaintiffs alleged that “[a]t the time of the sale, the house was defective,” in that it was “infested with black mold beneath the house” and “subject to flooding,” and that they “would not have purchased the property had the defect been lenovm.” (Emphasis added.) They alleged that the sellers knew of the alleged “defects” and that the “black mold problem [was] causing structural damage to the joists under the house,” but “failed to disclose the defect[s]” to the plaintiffs. (Emphasis added.) Alternatively, the plaintiffs alleged that “the defect was of such a nature as it could not have been discovered by reasonable inspection.” (Emphasis added.) They further alleged that the real estate agencies also failed to disclose the defects to them. The plaintiffs failed to allege when the defects or damages became known to them, but alleged only that at somej^unstated time Travelers was notified of “the defective condition” and their “continuing injury.”

In an affidavit filed on June 26, 2000, in opposition to Travelers’ first motion for summary judgment, Ms. Mangerchine stated that “subsequent to [the] purchase of the property ..., the floor joists supporting a portion of the building with an area of about 800 square feet collapsed over time.” (Emphasis added.) Ms. Man-gerchine also attested that her family vacated the premises “due to the condition of the collapse of the floor joists” and “due to the health risk of habitation of the home and exposure to black mold discovered.” (Emphasis added.) The affidavit, like the original petition, however, is deficient in failing to state the date or time period of the described collapse or the discovery of the defects or damage. The plaintiffs’ amended petition, also filed on June 26, 2000, added the allegation that “[t]he defective condition and hidden decay resulted in the collapse of the floor joists and ultimately the floor itself in an area of about 800 square feet of the building rendering it unusable and unsafe for habitation.” (Emphasis added.) Again, no date for the collapse or any other manifestation was stated.

The plaintiffs’ petition, as amended, does not specify the date or time period when the damages caused by the defective conditions were discovered or become evident to them. Such an omission, while material, is not necessarily fatal for purposes of summary judgment, although it could certainly have provided the basis for a dilatory exception of vagueness or ambiguity or even a peremptory exception of no cause of action. In some cases, the failure to allege specific dates, rather than broad time periods, does not preclude finding genuine factual dispute as to the existence of insurance coverage. See, e.g., Fed. Ins. Co. v. St. Paul Fire & Marine Ins. Co., 93-1099, p. 7 (La.App. 1st Cir.6/24/94), 638 So.2d 1132, 1135. However, this is not a carte blanche rule excusing the omission of material dates without consideration of the particular factual allegations and evidence in each case.

While the plaintiffs’ petition clearly alleges that the described redhibitory defects and the black mold infestation existed at the time of the sale, it does not allege that the defects and resulting damages were manifest or evident to them at that time; in fact, it clearly states the exact opposite. Travelers seems to suggest that the plaintiffs’ allegation that redhibitory defects existed at or prior to the time of the sale must be equated with a binding allegation that such defects and any related damages manifested themselves at the same time. To the contrary, a condition may exist, yet be hidden, unseen, or unnoticeable until it evolves to the point where it is manifest. By definition, a defect that is known or should have been discovered by the buyer cannot be a redhibitory defect. La. C.C. art. 2521. A defect is redhibitory when it is hidden, that is, not apparent, nor known to the buyer. La. C.C. art. 2521, Revision Comments, (b). Thus, the joinder of a redhibition claim for pre-exist-ing defects unknown at the time of sale with a claim under first-party property coverage allegedly in effect at the time of manifestation of resulting damage is not legally inconsistent. We agree with the plaintiffs that the trial court committed legal error in so concluding.

Reading the petition as a whole in light of the requirements of La. C.C.P. art. 860, the only reasonable conclusion which may thus be drawn from its allegations is that the damages resulting from the defective conditions manifested themselves sometime following the date of the sale. This conclusion is corroborated by Ms. Manger-chine’s affidavit. Whether that manifestation or the discovery of the damages by the plaintiffs occurred leafier the effective date of the Travelers policy and during the policy period is a genuine issue of material fact. The trial court erred in granting summary judgment on this issue. Because of this holding, it is unnecessary for us to address plaintiffs’ last two assignments of error.

The judgment of the trial court is reversed. All costs of this appeal are assessed to the defendant-appellee, Travelers Indemnity of Connecticut.

REVERSED.

CARTER, C.J., concurs.

WELCH, J., concurs without reasons.

      . The defendant real estate agencies were later dismissed by summary judgments.

      . The issue of the plaintiffs' standing or their right of action was apparently never ruled upon by the trial court and not raised as an issue on appeal.

      .Although the revised judgment was designated or certified by the trial court as a partial final judgment for purposes of appeal, such action was technically unnecessary, as the summary judgment dismissing Travelers as a party defendant constituted a final, ap-pealable judgment by definition. La. C.C.P. arts. 1911, 1915(A)(1), (3).

      . Property insurance is considered "first-party” insurance, in the sense that it covers a loss sustained by the insured, the first party to the insurance contract, as opposed to liability or "third-party” insurance, which covers the insured’s liability to a third party (a non-party to the insurance contract) for that party’s loss. See Black’s Law Dictionary 817, 1518 (8th ed.2004).

      . "Property damage" is defined in the policy as "physical injury to, destruction of, or loss of use of tangible property.” "Occurrence” is defined as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results in ... ‘bodily injury’; or ... ‘property damage’.”

      . Even if the alleged redhibitory defects caused or included "wet rot” or "mold” that in turn caused further property damage, such damage may not necessarily be excluded from coverage if die causative conditions might otherwise be held to constitute "hidden decay” causing a "collapse” of part of the house. See Wilson v. Aetna Cas. & Sur. Co., 619 So.2d 1213, 1215-16 (La.App. 3rd Cir.1993).

      . See also Black's Law Dictionary 963 (8th ed.2004), where "loss” for insurance purposes is defined as "[t]he amount of financial detriment caused by ... an insured property's damage, for which the insurer becomes liable.”

      . In Rondo v. Top Notch Properties, L.L.C., 03-1800, p. 18 (La.App. 4th Cir.6/2/04), 879 So.2d 821, 833, the court extensively surveyed the jurisprudence relating to the issue of the trigger of coverage in CGL policies for construction defects, noting that "the clear weight of authority in more recent cases” supported use of the manifestation dieory. In doing so, however, it observed that "a clear signal from the Supreme Court on this issue would surely do much to eliminate expensive future litigation.” Id.

      . Thus, the last-cited commentator concludes that "[t]he adoption of the manifestation theory in the first[-]party context makes practical sense from both the standpoint of the insured as well as the insurer.” Grand, supra, at 621.


source: Caselaw Access Project

author: JUDE G. GRAVOIS, Judge.

license: Public Domain

text:
    Emelda MOOTY, Patty Mooty Mattison & Lynn Mooty Driscoll v. CENTRE AT WESTBANK LLC, Kimco Realty Co., Jeff Arnold, Federal Insurance Co., The Chubb Corporation, ABC Insurance Company, and XYZ Insurance Company.
    No. 10-CA-792.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 29, 2011.

      Lance S. Ostendorf, Attorney at Law, New Orleans, LA, for Plaintiffs/Appellants.
    Joseph J. Maselli, Jr., H. Edward Bar-ousse, Lauren Dietzen, Attorneys at Law, New Orleans, LA, for Defendants/Appel-lees.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

|2In this case concerning a trip and fall in a store parking lot, plaintiffs, Em-elda Mooty (“Mrs. Mooty”), her daughter, Patty Mooty Mattison (“Mrs. Matti-son”), and her granddaughter, Lynn Mooty Driscoll (“Mrs. Driscoll”), appeal a summary judgment granted in favor of Centre at Westbank L.L.C. and Federal Insurance Company (“the defendants”), dismissing plaintiffs’ claims with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

Mrs. Mooty, who was 93 years old at the time of the incident, alleged in her petition for damages that she tripped and fell in the parking lot of the “Linens and Things” store in Harvey, Louisiana, on July 2, 2008. She had accompanied her daughter, Mrs. Mattison, to the store to buy a wedding gift for her great-granddaughter. Mrs. Mooty, who normally used a walker, pushed a shopping cart for stability. After shopping and while returning to her daughter’s mini-van, Mrs. |sMooty alleged that she tripped over a “tire stop” that was located in the handicapped parking portion of the parking lot. She also alleged that the tire stop was a “tripping hazard” and dangerous because “unlike other brightly painted tire stops in the parking lot, the parking lot tire stop in question was unpainted and had protruding rebar or metal rods emerging from it,” thus making it difficult for a disabled elderly person like Mrs. Moody to see it, causing her to trip on it. Mrs. Mooty’s petition further alleged that her “shoe/foot was caught by a protruding metal rod emerging from the parking lot tire stop,” and that this protruding rebar was believed to be the proximate and factual cause of her fall, causing Mrs. Mooty to trip and fall onto the hard paved parking lot, injuring her.

After taking the depositions of Mrs. Mooty, Mrs. Mattison and Mrs. Driscoll, the defendants filed a motion for summary judgment, arguing that plaintiffs would be unable to prove at trial the existence of a hazard that made Mrs. Mooty fall. The defendants contended that at most, Mrs. Mooty speculated that she tripped on the tire stop, but in reality had no idea what caused her to fall. In the alternative, the defendants contended that even if the deposition testimony established that Mrs. Mooty tripped over the tire stop (which the defendants denied), the tire stop did not present an unreasonable risk of harm because it was an open and obvious condition that Mrs. Mooty acknowledged that she saw prior to entering the store.

The defendants supported their motion with the deposition testimony of Mrs. Mooty, Mrs. Mattison, and Mrs. Driscoll, who was not present during the incident but who arrived at the parking lot shortly afterwards. The defendants noted that Mrs. Mattison had a handicapped parking sticker on her vehicle that she used when she transported her mother, who was elderly, disabled, and had some vision problems. Mrs. Mattison parked her vehicle in the first handicapped parking space |4in the row, which was closest to the store’s entrance. Mrs. Mattison had backed her van into the spot. The driver’s door was closest to the store. She gave her mother a cart to push to aid her in walking.

Both Mrs. Mooty and Mrs. Mattisoris deposition testimony established that when they were leaving the store, Mrs. Mattison walked ahead of her mother and did not see what path her mother took in walking back to the vehicle, nor did she see her trip or fall.

In the defendants’ memorandum in support of their motion, Mrs. Moot/s deposition testimony is characterized as follows:

At deposition, Mooty explained that she was standing a few feet away from her daughter’s car and between the two rows of parking spaces when the fall occurred. Plaintiff stated that she was standing still with her shopping cart, waiting for her daughter’s assistance, when she fell. She could not explain how she came to trip and fall when standing still. Ms. Mooty did not try to step over the parking stop at any time. She did not see the parking stop before she fell. She was not distracted by anything at the time she fell. When specifically asked what caused her to fall, her response was that she had “tripped on something” but does not know what it was. She came to believe she had tripped over the parking stop because she overheard someone say that it must have been the parking stop or rebar that caused her to fall. (Cites to the deposition testimony omitted.)

The defendants called the court’s attention to photographs of the pai'king lot. They pointed out that the tire stops, though unpainted, are white in color, which contrasted to the gray and black of the pavement, and are thus easily visible.

Plaintiffs opposed the motion for summary judgment, arguing that the defendants breached their duty to Mrs. Mooty, an elderly and handicapped person, that genuine issues of material fact remained unresolved, and that the matter was not ripe for summary judgment because plaintiffs had not yet conducted their own discovery. Plaintiffs took the position that the same deposition testimony upon which the defendants relied on to support their motion actually showed that Mrs. Mooty tripped on the tire stop or the rebar protruding from the top of it. They also | .^supported their opposition with a report from an engineering and safety expert who opined that the tire stop in question did not conform to the requirements of the Americans with Disabilities Act (“the ADA”) in several ways. Plaintiffs also contended that a scratch or mark on Mrs. Moot/s shoe was caused when it became caught on the protruding rebar.

After the hearing and arguments by both counsel, the trial court ruled in favor of the defendants, finding that no evidence connected the tire stop or the rebar to Mrs. Mooty’s fall. Following a request for written reasons, the trial court issued the following:

REASONS FOR JUDGMENT
This matter came before the Court on April 30, 2010 for hearing on a motion for summary judgment filed by Centre at Westbank, L.L.C. and Federal Insurance Company. After reviewing the briefs submitted by the parties, hearing oral argument, and considering all evidence offered, the Court granted Defendants’ motion. On May 17, 2010, the Clerk of Court issued notice of signing of the judgment. On May 25, 2010, Plaintiffs filed a request for written reasons.
Plaintiff filed suit seeking damages for injuries she sustained after she fell in the parking lot of Linens and Things in Harvey, LA. It is undisputed that no one witnessed her fall. Plaintiff was shopping with her adult daughter. After leaving the store, the daughter provided Plaintiff with a shopping cart to assist her in walking to the car. The car was parked in the first handicap parking space in the row closest to the store’s entrance. The vehicle was backed into the parking spot so that the driver’s side door faced the shopping center. When deposed, Plaintiff testified that she was standing still with her shopping cart waiting for her daughter to assist her when she fell. She did not try to step over any parking stop at any time, and she did not see a parking stop before she fell.
Plaintiff pointed to one line in her deposition where plaintiff suggested that she “fell on a little strip of concrete.” However, considering plaintiffs deposition testimony in its entirety, it is undisputed that plaintiff does not know what caused her to fall. The one line presented by plaintiff is taken out of context. Plaintiff later explained, that she only believes she tripped on a strip of concrete because she “heard them taking about it.” As correctly noted by Defendants, Plaintiff repeatedly testified that she does not know why she fell.
| ^Plaintiff also argued that the unpainted tire stop and/or a small amount of rebar protruding from the parking stop created an unreasonable risk of harm. However, nothing links plaintiffs fall to the tire stop or the protruding rebar. Photographs offered into evidence show that the parking stop Plaintiff alleges she tripped on is actually the parking stop in front of the second parking place located in the handicapped zone. Moreover, the small amount of protruding rebar is on the end of the parking stop farthest away from the shopping center. In other words, plaintiff would have had to have been walking away from her daughter’s car to trip on the rebar. Plaintiff submitted no evidence to support this theory. The only evidence plaintiff offered to prove that she tripped on protruding rebar on the far side of the parking stop next to the parking stop behind her vehicle is her shoe. Plaintiff argued that a nondescript scratch on the top of her shoe supported her argument that she tripped on the rebar.
After considering all of the evidence, the Court found that plaintiff has no evidence to show that the parking stop in question caused her fall. Without such evidence, plaintiff will be unable to meet her burden at trial. Thus, the Court finds that summary judgment in favor of the defendants is appropriate as a matter of law.

On appeal, plaintiffs/appellants argue that: 1) the trial court erred in granting summary judgment because the evidence is sufficient to permit the fact finder to conclude that the defendants are liable under La. C.C. Art. 2317; 2) the trial court committed error by disregarding the Americans with Disabilities Act and the duty imposed on the defendants/appellees; 3) the trial court erroneously granted the defendants/appellees’ motion for summary judgment by disregarding well-settled Louisiana jurisprudence; 4) the trial court must allow the jury to decide genuine issues of material fact; instead, the judge decided to make this determination; and 5) the trial court erroneously found that adequate discovery had been fulfilled.

STANDARD OF REVIEW

A motion for summary judgment is properly granted only on a showing that there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B); Tassin v. City of Westwego, 95-307 (La.App. 5 Cir. 12/13/95), 665 So.2d 1272. The initial burden of proof is with the |7mover to show that no genuine issue of material fact exists. If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The non-moving party must then produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the non-moving party fails to do so, there is no genuine issue of material fact and summary judgment should be granted. LSA-C.C.P. art. 966(C)(2); Callis v. Jefferson Parish Hosp. Service, Dist. # 1, 07-580, pp. 4-5 (La.App. 5 Cir. 12/27/07), 975 So.2d 641, 643.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and is favored in the law. LSA-C.C.P. art. 966(A)(2); Robinson v. Jefferson Parish School Bd., 08-1224, p. 13 (La.App. 5 Cir. 4/7/09), 9 So.3d 1035, 1043, writ denied, 09-1187 (La.9/18/09), 17 So.3d 975. Even though the summary judgment procedure is favored, it is not a substitute for trial on the merits. S.J. v. Lafayette Parish School Bd., 06-2862, p. 5 (La.6/29/07), 959 So.2d 884, 887 (per curiam).

A material fact is one that potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the lawsuit. Hines v. Garrett, 04-806, p. 1 (La.6/25/04), 876 So.2d 764, 765 (per curiam). A genuine issue is a “triable issue.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. If reasonable persons could disagree after considering the evidence, a genuine issue exists. However, if reasonable persons could reach only one conclusion on the state of the evidence, there is no need for a trial on that issue and summary judgment is appropriate. Id.; Alwell v. Meadowcrest Hosp., Inc., 07-376, p. 4 (La.App. 5 Cir. 10/30/07), 971 So.2d 411, 414. “In determining whether an issue is ‘genuine,’ courts cannot consider the merits, make | ^credibility determinations, evaluate testimony or weigh evidence.” Smith, 93-2512 at 27; 639 So.2d at 751.

Appellate courts review the granting or denial of a motion for summary judgment de novo under the same criteria governing the district court’s consideration of whether summary judgment is appropriate. Specifically, appellate courts must ask the same questions as the district court: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Matthews v. Banner, 08-339 (La.App. 5 Cir. 10/28/08), 996 So.2d 1161, 1163.

DISCUSSION

In Bourquard v. Winn Dixie Louisiana, Inc., 04-1150 (La.App. 5 Cir. 3/1/05), 900 So.2d 131, 135, this Court defined the relevant law as follows:

Two theories of liability are available in Louisiana to a plaintiff claiming injury caused by a thing’s condition. The first theory is negligence, under Articles 2315 and 2316 of the Louisiana Civil Code, and the second theory is strict liability under Article 2817 of the Louisiana Civil Code. Under both theories, the plaintiff has the burden of proving that the thing’s condition presented an unreasonable risk of harm, or was defective, and that this condition was a cause-in-fact of the plaintiffs injuries. Both theories employ the duty-risk analysis on a case by case basis. The plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, that the defendant owed a duty of care to the plaintiff, that the requisite duty was breached by the defendant, and that the risk of the harm was within the scope of the protection afforded by the duty breached. [Citations omitted.]

(citing Scramuzza v. River Oaks Inc., 03-959, pp. 9-10 (La.App. 5 Cir. 3/30/04), 871 So.2d 522, 529, writ denied, 04-1088, 876 So.2d 839 (La.6/25/04)).

As shown above in its written Reasons for Judgment, the trial court found that plaintiffs failed to prove the essential first element of the duty-risk analysis, which is causation. The trial court found that based upon the deposition testimony, | ;)plaintiffs would be unable to show at trial that Mrs. Mooty tripped as a result of encountering the tire stop; in other words, Mrs. Mooty’s deposition testimony failed to show that the tire stop or the rebar was related to her fall.

Plaintiffs argue that the trial court’s conclusion that plaintiffs cannot prove causation is erroneous because the trial court took certain statements of Mrs. Mooty’s deposition testimony out of context. Plaintiffs relied on B our guard, supra, in support of their position that it is inappropriate for the trial court on summary judgment to rule on causation and whether a hazard is unreasonably dangerous. Plaintiffs argue that the trial court completely ignored the physical evidence (the protruding rebar, the unpainted tire stop), as well as Mrs. Mooty’s testimony as to the totality of the circumstances involved in her trip and fall.

We find no merit to plaintiffs’ contention that the trial court took certain deposition statements of Mrs. Mooty out of context. We find that the deposition testimony of Mrs. Mooty is clearly and fairly characterized in the trial court’s written Reasons for Judgment. We additionally note that on a photograph of the parking spot in question, Mrs. Mattison provided a diagram of where she found her mother on the ground after she fell. Mrs. Mattison’s placement of Mrs. Mooty immediately after her fall in the photograph supports the trial court’s finding that Mrs. Mooty did not trip as a result of encountering the tire stop in the parking lot.

We find plaintiffs’ reliance on the Bowr-quard case is misplaced. In that case, the plaintiffs own detailed deposition testimony provided evidence that her shoe got caught in an expansion joint in the sidewalk in the front of the store, and further supported the conclusion that genuine issues of material fact remained as to whether a defect in the expansion joint was the cause-in-fact of the plaintiffs fall and whether the condition of the joint created a risk of unreasonable harm, thus precluding summary judgment.

[inIn the instant case, however, Mrs. Mooty’s deposition testimony is much weaker. She clearly stated that she did not know what caused her to fall (“I tripped on something, but I don’t know what it is.” “I don’t know why I fell.” “I believe I caught on something and it tripped me.”). In response to a direct question, she unequivocally denied trying to step over the tire stop (“No. I wasn’t a fool trying that.”). When asked what made her think that she tripped over the “big piece of cement,” she replied: “Because I heard them talking about it. They said that’s where it looked liked she tripped.” Thus, neither Mrs. Mooty’s testimony nor that of Mrs. Mattison creates a genuine issue of material fact as to whether the tire stop caused Mrs. Moody to fall.

Because we find that Mrs. Mooty has failed to show that the fee stop is related to her fall, this court need not reach the remainder of plaintiffs’ assignments of error. In particular, whether the tire stop complied with the ADA is of no moment given the fact that plaintiffs cannot show that the tire stop in question caused Mrs. Mooty’s fall.

Plaintiffs further argue that summary judgment was inappropriate herein because adequate discovery has not yet been completed. Plaintiffs argue that they should be allowed time to conduct additional discovery, including the taking of depositions of representatives of defendants. Given the fact that the depositions of plaintiffs themselves have failed to establish causation, further discovery, in particular depositions of representatives of defendants who were not witnesses to the incident, would not cure the defects in plaintiffs’ case. Thus, we find that the matter was ripe for summary judgment and accordingly affirm the trial court’s grant of summary judgment herein.

| ..CONCLUSION

For the reasons assigned, we affirm the trial court’s grant of summary judgment in favor of the defendants that dismissed plaintiffs’ case with prejudice. Costs of appeal are assessed to plaintiffs.

AFFIRMED


author: TERRI F. LOVE, Judge.

text:
    LEMOINE/BRASFIELD & GORRIE JOINT VENTURE, LLC v. ORLEANS PARISH CRIMINAL SHERIFF’S OFFICE.
    No. 2010-CA-1220.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 30, 2011.
    Writ Denied June 17, 2011.

      Murphy J. Foster III, Steven B. Loeb, Yvonne R. Olinde, Breazeale Sachse & Wilson, L.L.P., Baton Rouge, LA, for Plaintiff/Appellant.
    Michael G. Gaffney, Hurndon & Gaffney, New Orleans, LA, Gregory C. Weiss, Weiss & Eason, L.L.P., Mandeville, LA, for Defendant/Appellee.
    H. Bruce Shreves, Denise C. Puente, Christopher B. Conley, James A. Burton, Simon Peragine Smith & Redfearn, LLP, New Orleans, LA, for Carl E. Woodward, LLC.
    Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge DANIEL L. DYSART.
   TERRI F. LOVE, Judge.

_|jThis litigation involves a dispute over the award of a contract for a public works project at the Orleans Parish Criminal Sheriffs Office. Lemoine/Brasfield & Gorrie Joint Venture, L.L.C., brought suit against the Orleans Parish Criminal Sheriffs Office seeking to have the bid of Carl E. Woodward, L.L.C. rejected and seeking to be awarded the contract as the lowest bidder. Lemoine/Brasfield & Gorrie Joint Venture, L.L.C. now appeals the trial court’s judgment, which dismissed all of its requests for relief. We find that the OPC-SO acted in a fair and legal manner and not arbitrarily in disqualifying Lem-oine/Brasfield and affirm the trial court’s judgment.

FACTS AND PROCEDURAL BACKGROUND

In 2009, the Orleans Parish Criminal Sheriffs Office (the OPCSO or Defendant/Appellee) advertised a bid solicitation from contractors in conjunction with the award and execution of a public works contract for the construction of a project entitled “Orleans Parish Criminal Sheriffs Office Kitchen Warehouse Plant” (the Project). Lemoine/Brasfield & Gorrie Joint Venture, L,L.C. 12(Plaintiff/Appellant or Lemoine/Brasfield) is a limited liability company (L.L.C.) comprised of two companies, The Lemoine Company and Brasfield & Gorrie, L.L.C. Appellant was the lowest numerical bidder, however, the OPCSO notified Appellant that its bid was rejected as not being a responsive bid, as Lem-oine/Brasfield did not have a contractor’s license separate and distinct from the individual licenses of its component companies. The OPCSO opted to award the contract to the second lowest numerical bidder, Carl E. Woodward, L.L.C. (CEW or Ap-pellee/Intervenor).

Lemoine/Brasfield responded to this rejection by filing suit against the OPCSO; in its suit, Lemoine/Brasfield sought preliminary and permanent injunctions prohibiting the OPCSO from awarding the contract to any other bidder, an order of mandamus compelling the OPCSO to award the contract to Lemoine/Brasfield, and a declaratory judgment to the effect that any contract entered into between the OPCSO and CEW, or any other bidder, was null and void. In the alternative, Lemoine/Brasfield sought a monetary damage award. CEW intervened in the lawsuit, asserting that its bid complied with the public bid law.

The trial court conducted a hearing on the motion for preliminary injunction and denied Appellant’s request for preliminary injunction. The trial court rendered judgment to that effect and, three days later, issued an amended judgment that differed from the original judgment only with respect to phrasing, not substance.

Thereafter, the trial court made the denial of the Appellant’s request for preliminary injunction permanent pursuant to an agreement of the parties, and rendered a final judgment of dismissal. The trial judge ruled that:

“1. The denial of the Preliminary Injunction by Judgment dated January 8, 2010, is hereby made permanent and deemed a final judgment.
|s2. Plaintiffs Motion for Mandatory Injunction is dismissed as moot.
3. Plaintiffs Petition for Injunctive Relief, Mandamus and Declaratory Judgment is hereby dismissed with prejudice with all Court costs assessed to Plaintiff.” '

Lemoine/Brasfield appeals and avers that the trial court erred in denying its request for preliminary and permanent in-junctive relief and argues that the trial court’s judgment should be reversed. Lemoine/Brasfield further maintains that this matter should be remanded for judgment on the request for monetary damages.

STANDARD OF REVIEW

A public agency awarding a public works contract is vested with the power and discretion to determine the responsibility of the bidder and to reject all bids if none are satisfactory. J.W. Rombach v. Parish of Jefferson, 95-829, p. 12 (La.App. 5 Cir.2/14/96), 670 So.2d 1305, 1310 (citing La. R.S. 88:2212). However, the agency’s discretion must be exercised in a fair and legal manner and not arbitrarily. J.W. Rombach, 95-829, p. 12, 670 So.2d at 1310.

On review of the state agency’s exercise of discretion determining whether a bidder is the lowest responsible bidder, a court should not substitute its judgment for the good faith judgment of an administrative agency. Id. at p. 13, 670 So.2d at 1311. The agency’s reasonable good faith interpretation of its own specifications should not be disturbed by a court that may have different views. Systems Plus, Inc. v. East Jefferson General Hosp., 94-83, p. 11 (La.App. 5 Cir.5/31/94), 638 So.2d 404, 409 (quoting D.M. Clement Contr. v. St. Charles Parish, 524 So.2d 86 (La.App. 5th Cir.1988)); J.W. Rombach v. Parish of Jefferson, 95-829, p. 13 (La.App. 5 Cir.2/14/96) 670 So.2d 1305, 1311. The duty of this Court is to determine whether the OPCSO acted in a fair and legal manner and not arbitrarily in ^disqualifying Lemoine/Brasfield. J.W. Rombach, 95-829, p. 14, 670 So.2d 1305, 1311; B.F. Carvin Const. Co., Inc. v. Jefferson Parish Council, 98-1189, p. 12 (La.App. 5 Cir. 5/19/99), 735 So.2d 859, 865.

PUBLIC WORKS CONTRACT

Appellant is comprised of two companies-The Lemoine Company and Bras-field & Gorrie, L.L.C. Appellant bid on the Project, and while Appellant was the lowest numerical bidder, the OPCSO declared Appellant’s bid non-responsive. The OPC-SO determined that Appellant did not have a contractor’s license separate and distinct from its two component entities and awarded the contract to the second lowest numerical bidder, Intervenor.

Appellant contends that each of its component companies hold individual, valid contractor’s licenses, and Appellant maintains that because the companies formed a “joint venture,” Appellant was not required to obtain a separate license.

Appellee contends that while Lem-oine/Brasfield submitted their bid under the name “The Lemoine Company, L.L.C./Brasfield Gorrie, Joint Venture L.L.C.,” Louisiana law does not recognize a “limited liability company joint venture” as an entity. Appellee argues that state bid law and state contracting law require that the entity that is awarded the contract be licensed, and the L.L.C. at issue does not meet this requirement.

Louisiana’s Public Bid Law, La. R.S. 38:2212, et seq., “was enacted in the interest of the taxpaying citizens and has for its purpose their protection against contracts of public officials entered into because of favoritism and involving exorbitant and extortionate prices.” Haughton Elevator Div. v. State Div. of Admin., 367 So.2d 1161, 1164 (La.1979). In enacting the public bid law, the legislature specifically prescribed the conditions under which the state will permit | ^public work to be done on its behalf or on behalf of its political subdivisions. Hamp’s Constr., L.L.C. v. The City of New Orleans, 05-489, p. 4 (La.2/22/06), 924 So.2d 104, 107; Broadmoor, L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall Auth., 04-211, p. 6 (La.3/18/04), 867 So.2d 651, 656.

La. R.S. 37:2150 provides that:

The purpose of the legislature in enacting this Chapter is the protection of the health, safety, and general welfare of all those persons dealing with persons engaged in the contracting vocation, and the affording of such persons of an effective and practical protection against the incompetent, inexperienced, unlawful, and fraudulent acts of contractors with whom they contract. Further, the legislative intent is that the State Licensing Boards for Contractors shall monitor construction projects to ensure compliance with the licensure requirements of this Chapter.

La. R.S. 37:2151, et seq. provides for the creation of the State Licensing Board for Contractors, and La. R.S. 37:2153 sets forth the powers and duties of the board and provides in part:

The board shall have the power to make by-laws, rules and regulations for the proper administration of this chapter; to employ such administrative assistants as are necessary; and to fix their compensation. The board is hereby vested with the authority requisite and necessary to carry out the intent of the provisions of this chapter.

In accordance with this statute, the State Licensing Board for Contractors enacted the State of Louisiana Contractors’ License Law and Rules and Regulations (Administrative Rules). Administrative Rule 1103 states:

A. All licensed contractors bidding in the amount of $50,000.00 or more shall be required to have qualified for the classification in which they bid.
B. When two or more contractors bid as a joint venture on any project in the amount of $50,000.00 or more, not in conflict with R.S. 87:2150 et seq., all parties are required to be licensed at the time the bid is submitted. Each party to the joint venture may only perform within the applicable classifications of the work of which he is properly classified to perform. (Emphasis added). |fiThe Louisiana Contractors’ Licensing

Law, La. R.S. 37:2150, et seq., contains the following definitional provisions. In pertinent part, La. R.S. 37:2150.1(4)(a) defines contractor as:

“... any person who undertakes to, attempts to, or submits a price or bid or offers to construct, supervise, superintend, oversee, direct, or in any manner assume charge of the construction, alteration, repair, improvement, movement, demolition, putting up, tearing down, or furnishing labor, or furnishing labor together with material or equipment, or installing the same for any building, highway, road, railroad, sewer, grading, excavation, pipeline, public utility structure, project development, housing, or housing development, improvement, or any other construction undertaking ... (emphasis added)”

La. R.S. 37:2150.1(9) provides in part that:

“Person” means any individual, firm, partnership, association, cooperative, corporation, limited liability company, limited liability partnership, or any other entity recognized by Louisiana law ... (emphasis added.)”

Appellee concluded that simply including the words “joint venture” in the name of Appellant’s limited liability company did not allow Appellant to circumvent the licensing requirement for limited liability companies. Appellant, on the other hand, avers that it is not required to hold a license separate from that of its component companies because each company holds a contracting license.

Appellant supports its contention with J. Caldarera & Company, Inc. v. Hospital Service District No. 2 of the Parish of Jefferson, 97-1025, p. 2 (La.App. 5 Cir. 2/11/98), 707 So.2d 1023, 1026, wherein Manhattan Construction Company (Manhattan) was a licensed contractor in the State of Louisiana, and Gibbs Construction Company (Gibbs) was a licensed contractor in the State of Louisiana. Manhattan and Gibbs submitted a bid as a joint venture, “Manhattan/Gibbs, A Joint Venture.” Id. at p. 7, 707 So.2d at 1026.

|7In Caldarera, the Louisiana Supreme Court stated:

“... we believe that the trial court correctly interpreted the applicable law to provide that a joint venture is properly licensed when each of its members holds a valid license and, therefore, that joint venture itself is not required to get an additional license.”

Id.

Further, Appellant notes that the Calda-rera case was decided prior to the 1997 amendment to La. R.S. 37:2150.1(9); at that time, the definition of “person” included “joint venture.” Appellant likens the OPCSO’s argument here to that of the plaintiff in Caldarera, where the Court rejected the plaintiffs contention that because the statute provided that a “joint venture” is a “person,” and because a “person” must be licensed, the joint venture must have its own license before it can bid on a public project.

We find the matter sub judice distinguishable from Caldarera. Unlike Calda-rera, at present, the definition of “person” in La. R.S. 37:2150 et seq. does not include “joint venture.” La. R.S. 37:2150 et seq. currently provides that a “person” includes a “limited liability company.” Administrative Rule 1103 on joint ventures applies “[wjhen two or more contractors bid as a joint venture on any project in the amount of $50,000.00 or more, not in conflict with R.S. 37:2150 et seq.” (Emphasis added).

According to the basic rules of statutory construction, when written law is clear and unambiguous, and its application leads to no absurd consequences, the law shall be applied as written. La. Civ.Code Art. 9; Rosenbush Claims Service, Inc. v. City of New Orleans, 94-2223 (La.4/10/95), 653 So.2d 538, 544. Moreover, the legislature is presumed to have enacted a statute in light of the preceding statutes of the same subject matter and court decisions construing those |8statutes, and where the new statute is worded differently from the preceding statute, the legislature is presumed to have intended to change the law. Rosenbush Claims Service, Inc. v. City of New Orleans, 94-2223 (La.4/10/95), 653 So.2d 538, 544; Helmerich & Payne, Inc. v. Stephens, 569 So.2d 21, 23 (La.App. 4th Cir.1990).

Reading the statutes in pari materia with the administrative rule, we find the matter before us in direct conflict with the requirements of La. R.S. 37:2150 et seq. While the limited liability company’s name contains the words “joint venture,” including the words “joint venture” in a name does not necessarily make it such. Further, while a joint venture is not required to get an additional license to be deemed a responsible bidder under the Public Works Act, a limited liability company is required to hold a license.

Lemoine/Brasfield captioned their effort a “joint venture” and formed a limited liability company. Under the instant facts, the formation of this new legal entity made Lemoine/Brasfield subject to the requirements set forth under public bid law for limited liability companies.

We find that the trial court correctly interpreted the applicable law to provide that under the instant facts, a limited liability company is required to obtain a license although its name contains the words “joint venture.” Appellant formed a limited liability company, which made it a “person.” State bid law and state contracting law require that the entity that is awarded the contract be licensed, and the limited liability company at issue did not meet this requirement. Lemoine/Brasfield is thus a non-licensed bidder, and we find that the OPCSO did not act arbitrarily or unfairly in disqualifying Lemoine/Bras-field. We therefore find no error in the trial court’s judgment.

^DECREE

We conclude that the OPCSO acted in a fair and legal manner and not arbitrarily in disqualifying Lemoine/Brasfield. For the foregoing reasons, we affirm the trial court’s judgment dismissing all of the claims of Lemoine/Brasfield against the OPCSO.

AFFIRMED.


author: CARAWAY, J.

text:
    Kathy Robinson JONES, Plaintiff-Appellee v. Kem JONES, Defendant-Appellant.
    No. 46,315-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 13, 2011.

      John S. Evans, Brandi Traylor Boutwell, for Appellant.
    Kathy Robinson Jones (Hughes), pro se.
    Leroy Smith, Jr., Tallulah, for Appellee.
    Before BROWN, GASKINS and CARAWAY, JJ.
   CARAWAY, J.

Iiln this child custody dispute, father seeks to modify the original child custody arrangement which awarded joint custody and named the child’s mother the domiciliary parent. Because we find that the father failed to carry his heavy burden of proof imposed under Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), we affirm the decision of the trial court.

Facts

Kem Jones (“Kem”) and Kathy Robinson Hughes (“Kathy”) married July 13, 1996, and established their matrimonial domicile in Mansfield, Louisiana. One child, Jarred Kem Jones (“Jarred”), was born of their marriage on August 12, 1997. Kathy also had one daughter, Ja’Terriea Robinson (“Ja’Terrica”), from a previous relationship. Because Kem was present for most of Ja’Terrica’s childhood, she considers him to be her father.

In May of 2004, Kem and Kathy separated, at which point Kathy and the children moved to Shreveport for a brief period of time before moving back into the family home in an attempt to reconcile the marriage. In June of 2005, after attempts at reconciliation failed, Kathy secured a job in Tallulah, Louisiana, and moved there with her children. Kathy subsequently filed a “Petition for Divorce and Determination of Incidental Matters” in the Sixth Judicial District Court in Madison Parish. In her petition, Kathy prayed that she be named the primary domiciliary parent of Jarred, subject to visitation rights in favor of Kem. Proceeding pro se, Kem filed his answer, alleging fault on the part of Kathy and citing adultery, spousal 12abuse and abandonment of the matrimonial domicile as reasons for the breakup of the marriage. He further complained that Kathy was an unfit parent and prayed for the sole legal custody of Jarred. The trial court’s minutes reflect that a trial was held on October 24, 2006, wherein testimony was heard and evidence received. Judgment was subsequently rendered granting a divorce in favor of Kathy and against Kem. The judgment also awarded joint custody to Kathy and Kem and named Kathy the domiciliary parent. Kem was granted custody every other weekend and for five weeks in the summer.

On June 14, 2007, Kathy filed a motion in the trial court requesting permission to transfer Jarred from the Madison Parish School System to the Vicksburg Warren County School District. In response, Kem filed both a “Petition for Change in Custody” and a “Motion for Change in Venue.” In a judgment rendered June 24, 2008, the trial court simultaneously denied Kem’s motion to transfer venue and granted Kathy authorization to relocate Jarred to the Vicksburg school system.

On December 4, 2009, Kem filed a “Rule to Modify Custody and for Contempt” seeking to establish himself as domiciliary parent. In his petition, Kem argued that circumstances had changed since the 2006 judgment of divorce. The crux of his argument was that Kathy continued to thwart Kem’s communications with Jarred and that Jarred expressed a preference to live with Kem in Mansfield.

A July 28, 2010, hearing was held in which the trial court heard testimony from both Kem and Kathy as well as from other extended family ^members. Testimony indicated that both Kem and Kathy maintain steady employment, attend church on a regular basis and spend recreational time with Jarred. Kathy has since remarried and now lives with her new husband, Roderick Hughes (“Roderick”), in Vicksburg, Mississippi. Kem remains single and lives in Mansfield, in the house where he and Kathy resided during their marriage. The court additionally conducted a one-on-one interview with Jarred, in which Jarred expressed his desire to live in Mansfield with his father.

By judgment dated August 4, 2010, Kem’s request to be named the primary domiciliary parent was denied. It was further ordered that the rules and conditions governing custody and visitation contained in the 2006 Judgment of Divorce be amended to reflect:

1) Summer visitation with the father shall be increased to three weeks during June, three weeks during July and two weeks during August of each year.
2) The father shall provide a cell phone to Jarred and shall pay the cost of making calls by Jarred to his father, whether with a prepaid plan or otherwise so that Jarred may communicate with his father and his mother at all reasonable times.

These new amendments were incorporated into the Joint Custody Implementation Plan attached to the trial court’s judgment.

From this judgment denying his request to be named domiciliary parent, Kem appeals.

Discussion

In a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest thereof. La. C.C. art. 131. Comment (d) to Article 131 states that the jurisprudential requirements |4of Bergeron v. Bergeron, supra, are applied to actions to change custody rendered in considered decrees. In such actions, the judgment cannot be modified unless the party seeking the change bears the heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification, or proves by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child. Bergeron v. Bergeron, supra; Pahal v. Taylor, 42,698 (La.App.2d Cir.8/29/07), 965 So.2d 574.

The determinations of the trial court in child custody matters are entitled to great weight; this discretion will not be disturbed on review in the absence of a clear showing of abuse. AEB v. JBE, 99-2668 (La.11/30/99), 752 So.2d 756; Bergeron v. Bergeron, supra; Brown v. Mock, 43,571 (La.App.2d Cir.7/16/08), 987 So.2d 892.

Because the 2006 judgment naming Kathy as domiciliary parent was a considered decree, the Bergeron standard was properly applied by the trial court. Testimony regarding Kem’s concerns over the current custody arrangement was heard by the trial court. Specifically, he asserted that Kathy was attempting to sever his communication access with Jarred by taking away his phone privileges as a form of punishing the child. Kathy denied this and stated in her testimony that Jarred had access to a telephone at all times if he wished to call Kem. The trial court’s ruling regarding | -,Jarred’s cell phone arrangements was an appropriate resolution of this matter.

Kem additionally testified that he was concerned over Kathy and Roderick’s disciplining of Jarred. Specifically, he points to one occasion where Jarred was spanked by Roderick four times with a belt. Kathy did not deny that this occurred and moreover stated her approval for this type of punishment as a means of discipline. Kem also claimed that there was a history of physical violence between Kathy and Roderick. Kathy denied these accusations and stated that she and Roderick “fussed occasionally,” but only like any other couple. A particular incident was highlighted where a cell phone was apparently thrown at Roderick’s head, resulting in a trip to the hospital and stitches. Although this event was allegedly precipitated by a heated argument between Kathy and Roderick, both agreed that it was an accident that occurred when Kathy attempted to toss Roderick’s cell phone from one corner of the house to the other. Kem additionally accused Kathy of physically abusing him and Ja’Terrica. Kathy once again denied these allegations.

Ja’Terrica testified that Jarred is afraid of their mother and that he takes on a different personality while he is around her. She believes him to be more “effervescent” and “energetic” when he is around his father. Ja’Terrica receives financial support from Kem in order to live in an off campus apartment in Ruston, Louisiana. Kathy essentially argued that Kem is buying Ja’Terrica’s loyalty and love.

| (¡Testimony was generally solicited regarding Jarred’s home and school environment in both Mansfield and Vicksburg. At the time of the hearing, Jarred was twelve and attending the eighth grade at Vicksburg Intermediate School. Kathy, who is employed as a business manager for the Madison Parish School Board, maintains a work schedule that is similar to Jarred’s normal school day. Roderick testified that he interacts with his stepson on a daily basis and that he is teaching Jarred how to hunt and fish. Roderick has two children from previous relationships and has regularly scheduled visitation with each.

Kem is a private investigator and testified that he typically works from 9 a.m. until 2 p.m. He testified that he and Jarred have a strong bond and that he always makes time for his son. Kem expressed his desire to enroll Jarred in Mansfield Middle School and to sign him up for various extracurricular activities, including basketball and band. Kem testified that he has family who lives in Mansfield, including his mother, his brother and sister-in-law, and various cousins. Kem felt that Jarred would be able to easily reunite with the friends he met in Mansfield before moving.

The trial judge chose to speak with Jarred individually. The conversation was recorded and made part of the record. During this interview, Jarred indicated his preference to live with his father. However, it was evident that Jarred loves both parents. He stated that he was taught to be respectful in each home. Jarred suggested that he was able to confide in both parents and was able to go to either with his problems. He acknowledged that “both [parents] keep a pretty good watch on me.” Jarred vindicated that he had more friends in Mansfield and that he liked the neighborhood where his father lived. He stated that he wished to five with his dad in Mansfield because “that was my home and I grew up there.”

This court has previously observed that a child’s preference to live with a particular parent is not by itself sufficient to justify a change in custody. Stroud v. Stroud, 43,008 (La.App.2d Cir.12/14/07), 973 So.2d 865; Lunsford v. Lunsford, 545 So.2d 1279 (La.App. 2d Cir.1989). See also, Pahal v. Taylor, swpra. Like the child in Stroud, supra, Jarred was 12 years old at the time of the custody hearing and expressed a preference to live with the father, giving as the reasons, friends, school and sports. The court in Stroud noted, however, that “while friends, church and extracurricular activities are important to a child, they are not legally sufficient to justify a change in custody in this case ... where the custodial parent has provided a suitable home for the child.” Significantly, the ruling in Stroud did not involve the Bergeron standard.

Despite the strained relationship maintained by his mother and father, Jarred appears to be a well-adjusted young man. Both households provide him financial support and spiritual guidance. Jarred is required to be respectful and taught to behave appropriately in both homes. Moreover, the trial court did not find a substantial difference in the Mansfield and Vicksburg schools.

Based on the foregoing, we do not find that the sort of “deleterious circumstances” contemplated by Bergeron exist. Nor do we find that the harm likely to be caused by a change of environment is substantially |Routweighed by its advantages to Jarred. The trial court properly applied the Bergeron standard. In its reasons for judgments, the court held that the types of behavior complained of do not rise to a level warranting a change in custody. Specifically, the court considered the corporal punishment administered by Jarred’s stepfather and found it to be reasonably administered and appropriate under the circumstances. The court additionally made credibility rulings concerning the other contested matters. Considering the testimony as a whole, the court concluded:

[FJrankly my assessment of the home is the home with a good mother, a good stepfather, a hard working stepfather. A mother who has required her children to work hard in school. I understand and I’m not saying that Mr. Jones didn’t have a hand in that, too, but the older child, Ja’Terrica apparently received a scholarship and did well academically. I understand that Jarred received the National Honor Society award, which is quite good. Somebody is doing a good job with the young man. He’s very respectful.
Jarred would prefer to live with his father most of the school year ... [t]he case law provides that the court may consider the preference of a child who has sufficient understanding to express that and sufficient maturity to essentially know what they’re talking about.
* * * * * *
But the court has to apply the law. The court cannot decide the cases in a vacuum. The Bergeron case is the controlling law. There has not been proof that there is a deleterious present custody.

Conclusion

Our review of the record conforms with the trial court’s opinion that Jarred is thriving under the current custody arrangement, and the judgment is affirmed. Costs of appeal are assessed to appellant.

AFFIRMED.

      . A considered decree is an award of permanent custody in which the trial court receives evidence of parental fitness to exercise care, custody and control of children. Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731; Oglesby v. Oglesby, 25,974 (La.App.2d Cir.8/17/94), 641 So.2d 1027.


author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee v. Gene Owens LANDERS, Appellant.
    No. 46,251-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 13, 2011.
    Louisiana Appellate Project by Peggy J. Sullilvan, for Appellant.
    Gene Owens Landers, Pro Se.
    James David Caldwell, Attorney General, Clifford R. Strider, III, Molly L. Balfour, Assistant Attorneys General, for Ap-pellee.
    Before BROWN, PEATROSS & LOLLEY, JJ.
   PEATROSS, J.

| pursuant to a plea bargain, Defendant, Gene Owens Landers, pled guilty to armed robbery and was sentenced to 15 years’ imprisonment at hard labor without the benefit of probation, parole or suspension of sentence. Defendant, proceeding pro se, filed the instant appeal and briefing deadlines were set by this court. Subsequently, however, Defendant’s appellate counsel filed a motion to withdraw, together with a Benjamin brief in support of the motion.

The State then filed an appellate brief concurring that there are no nonfrivolous issues to raise on appeal. On January 13, 2011, this court rescinded the previously fixed pro se briefing deadline and notified Defendant that he may file a brief in this appeal within 30 days of its order and request to view the appellate record within 10 days of the date of this order. Defendant has not requested the record and has not filed a brief.

For the reasons stated herein, the motion to withdraw is granted and the conviction and sentence of Defendant are affirmed.

DISCUSSION

Defendant was originally charged by bill of information with armed robbery and, in a separate case, by bill of indictment with second degree murder. Both cases arose from the same incident. As part of a plea bargain agreement, Defendant pled guilty as charged in the instant case. Pursuant to the agreement, a presentence investigation report was ordered and Defendant’s sentence was capped at 15 years’ imprisonment without the benefit of probation, parole or suspension of sentence. Defendant was | ^informed that his sentencing range would be 10-15 years without benefits in accordance with the minimum sentencing exposure of La. R.S. 14:64. As previously stated, on April 8, 2010, Defendant was sentenced to serve 15 years’ hard labor without benefits or eligibility for diminution of sentence in accordance with La. R.S. 15:571.3.

As previously set forth herein, this appeal followed and appellate counsel for Defendant filed an Anders brief seeking to withdraw and alleging that there are no nonfrivolous issues to raise on appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241; State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176; State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). The brief outlines the procedural history of the case and the evidence adduced during the plea hearing, including the fact that Defendant confessed his participation in the armed robbery of the victim. The brief also contains “a detailed and reviewable assessment” for both Defendant and this court “as to whether the appeal is worth pursuing in the first place.” Jyles, supra.

In addition, we note that Defendant filed a pro se motion to reconsider sentence in the trial court, which was denied. Defendant’s counsel on appeal correctly reviews this issue, in brief, concluding that a sentence imposed in accordance with a plea agreement is not reviewable on appeal. La. C. Cr. P. art. 881.2(A)(2); State v. Young, 96-0195 (La.10/15/96), 680 So.2d 1171; State v. Vance, 45,250 (La.App.2d Cir.5/19/10), 36 So.3d 1152. Appellate counsel for Defendant further verifies |sthat she mailed copies of the motion to withdraw and her brief to Defendant, in accordance with Anders, Jyles, Mouton and Benjamin, supra.

Finally, we have conducted an error patent review of the appellate record and no errors patent were found. The bill of information and arraignment were correctly done. There were no errors patent found in the guilty plea or sentencing proceedings. Furthermore, the record supports the sentence imposed on Defendant.

CONCLUSION

For the foregoing reasons, the motion to withdraw is granted and the conviction and sentence of Defendant, Gene Owens Lan-ders, are affirmed.

AFFIRMED.

      . State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990).