author: PETERS, J.

text:
    Antonial K. MILLER, et ux. v. Lenard Keith JACKSON, et ux.
    No. CA 11-773.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 7, 2011.

      Paul Tate, Jr. Attorney at Law, Mamou, LA, for Plaintiffs/Appellants, Antonial Keith Miller, Michelle Lee Frey Miller.
    Clyde Fontenot, Attorney at Law, Ville Platte, LA, for Defendants/Appellees, Lenard Keith Jackson, Donna K. Guillory Jackson.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, and JIMMIE C. PETERS and BILLY HOWARD EZELL, Judges.
   PETERS, J.

1 iThis litigation involves a dispute over immovable property situated in Ville Platte, Evangeline Parish, Louisiana. Both the plaintiffs, Antonial Keith Miller and Michelle Lee Frey Miller (sometimes hereinafter referred to as “the Millers” or “Antonial” and/or “Michelle”), and the defendants, Lenard Keith Jackson and Donna K. Guillory Jackson (sometimes hereinafter referred to as “the Jacksons” or “Lenard” and/or “Donna”), acquired title to the immovable property from the same vendors, Larry Jones Fontenot and Verona Deville Fontenot (sometimes hereinafter referred to as “the Fontenots” or “Larry” and/or “Verona”). After a trial on the merits, the trial court concluded that the sale from the Fontenots to the Jacksons was a simulation in that it was intended to be a form of security for the advancement of funds from the Jacksons for the benefit of the Millers. The trial court then granted the Millers sixty days to repay the full amount represented by the simulated sale or to suffer the loss of title to the immovable property to the Jacksons. Both the Millers and the Jack-sons have appealed. For the following reasons, we affirm the trial court judgment in all respects except to amend the trial court judgment to include Donna K. Guillory Jackson as a party to the judgment.

DISCUSSION OF THE RECORD

In October of 2002, the Fontenots sold Antonial 6.64 acres in Ville Platte, Louisiana, for $70,000.00. The transfer of ownership included the residence located on the property. Antonial is Verona’s son and Larry’s stepson. Because Antonial had at least one lien against him recorded in the mortgage records of Evangeline Parish, he did not want his name to appear in the public records as owner. In order to keep his ownership secret from the public, the parties consummated the sale by oral agreement 12and Antonial paid the purchase price in cash. At the time of the transfer, Michelle and Antonial were not married. That event did not occur until December 11, 2007.

Despite the fact that he had transferred title to Antonial, on the surface Larry continued to treat the property as his own. On July 8, 2003, or less than one year after transferring the property to Antonial, the Fontenots borrowed $15,000.00 from Citizens Bank in Ville Platte and secured the loan by a mortgage on the 6.64 acres. Obviously, the Fontenots did not inform Citizens Bank they no longer owned the property. Larry justified his continuous treatment of the property as if he owned it by suggesting that he had loaned Antonial money over the years and the funds acquired from the mortgage basically balanced the amount loaned.

At some point after the transfer, Larry was diagnosed with cancer. On April 9, 2003, he executed a last will and testament which included a bequest of the 6.64 acres to Antonial. He did this to protect Antonial without disclosing the true ownership of the property on the public records. Later Larry decided he did not wish to maintain the property in his name and instructed Antonial to either take the steps to have the public records reflect his ownership or find someone to whom he [Larry] could transfer the property. That someone became Lenard Jackson.

Despite obtaining a sizable tort settlement that enabled him to purchase the 6.64 acres and have money left over, Anto-nial continued to struggle personally and financially. He found himself incarcerated in jail for a probation violation and facing an Internal Revenue Service tax lien when Larry presented him with the ultimatum to transfer the property out of his name. Operating through Michelle, Antonial negotiated an arrangement whereby the property would be transferred into the Jacksons’ name. The particular terms of this arrangement comprise the basis for this litigation.

The transfer itself occurred on July 24, 2008, in the office of a Ville Platte attorney. The Fontenots executed a cash sale deed transferring the 6.64 acres to the 13Jacksons for the stated price of $25,000.00. The Fontenots received $16,611.34 of the proceeds and the balance was paid directly to Citizens Bank to cancel the mortgage Larry had placed on the property. The Jacksons borrowed the purchase price from Citizens Bank and secured that loan with a mortgage on the property. The terms of the mortgage required the Jacksons to pay the bank $291.33 per month for five years with a final $15,000.00 payment.

Thereafter, Antonial and Michelle continued to live in the residence on the 6.64 acres and paid the Jacksons $300.00 per month. They were inconsistent in their payments, and, in late 2009, Lenard informed the Millers that he was in the process of selling the property to someone else and they were to vacate the property. The Millers did not immediately vacate the property and, on January 30, 2010, the Jacksons served the Millers with a notice of eviction, ordering them to vacate the property within five days. The Millers responded with the suit now before us.

On February 23, 2010, the Millers filed suit against the Jacksons, seeking to prevent the Jacksons from selling the property and asking for specific performance of the oral contract allowing the Millers to buy back the property. Alternatively, the Millers sought to receive the money derived from the sale of the property that was over the amount the Jacksons had paid. On April 27, 2010, the Jacksons filed an answer and reconventional demand asking for a declaratory judgment recognizing them as the owners of the property.

Following an October 28, 2010 bench trial, the trial court found the sale to the Jacksons from the Fontenots to be a simulation provided for security purposes pursuant to La.Civ.Code art. 2569. Having reached that conclusion, the trial court then granted the Millers sixty days to reimburse the Jacksons the purchase price paid to the Fontenots less a credit for all the $300.00 monthly payments made to the 14 Jacksons since the July 24, 2008 transaction. As a part of the repayment opportunity, the Jacksons were ordered to remove any and all encumbrances against the property within sixty days after the repayment was made. Failure to reimburse the Jacksons within the sixty-day time period would, according to the trial court judgment, vest title to the 6.64 acres in the Jacksons.

Despite the lack of written proof, there is no dispute over the fact that Antonial was the actual owner of the 6.64 acres transferred to the Jacksons. Both Larry and Antonial testified to the terms of the October 2002 transaction, and Larry acknowledged that Antonial began living on the property after the sale. Absent any evidence to the contrary, this testimony satisfies the requirements of La.Civ.Code art. 1839, which states, in pertinent part, that “an oral transfer is valid between the parties when the property has been actually delivered and the transferor recognizes the transfer when interrogated on oath.” In fact, Lenard acknowledged in his testimony that he knew Antonial was the actual owner of the property when he entered into the July 24, 2008 act of transfer with the Fontenots. There is also no dispute over the fact that the 6.64 acres was appraised at $65,000.00 at the time of the July 24, 2008 transaction. The dispute involves how that 2008 act of transfer is to be interpreted.

The Millers assert that Lenard volunteered to transfer the 6.64 acres into his name and arrange a loan at Citizens Bank. Although the loan would be maintained in the Jacksons’ name, it was understood that the funds received would be used for the benefit of the Millers, that the 6.64 acres would remain the property of the Millers, and they would be responsible for repaying the loan through monthly payments to the Jacksons. Antonial testified that because of his criminal troubles, he was forced to leave the negotiations with Lenard to Michelle. However, he understood from Michelle’s jail visits with him that he would remain the owner of the property and would be responsible only for repaying the $25,000.00 paid to Larry. It was his understanding that at some point in the future, when his finances were stable, the | r,Jacksons would transfer record title to him. His position was that at no time would he have sold property valued at $65,000.00 for $25,000.00, given the fact that he had paid $70,000.00 for it originally-

On the other hand, Lenard’s position is that the July 24, 2008 transaction was a valid transfer of title to him, that the Millers then began renting the property from him for $300.00 per month, and that he agreed to allow the Millers the opportunity to buy the property back by some unspecified time in the future — but for the $65,000.00 appraised value and not the $25,000.00 stated consideration. As justification for the resale price, Lenard asserted that the actual purchase price was $50,000.00 because he had already advanced Antonial $25,000.00 before the title transfer took place. He testified that these advances had been evidenced by IOUs signed by Antonial, but that after the property transfer, he returned the signed IOUs to Antonial and had no other proof of the advances. According to Lenard, the transaction was not a friendship transaction, but strictly a business one wherein he purchased the 6.64 acres as owner and not as an intermediary. In fact, he testified that when he began advancing money to Antonial, he construed those advances as payments to be applied toward his purchase of the property.

With regard to Antonial’s right to reacquire the property, Lenard testified that the repurchase agreement was more in the form of a right of first refusal in the event he unilaterally decided to sell the 6.64 acres sometime in the future. Additionally, because the Millers were not always timely in making the monthly payments, he put into place a sixty-day grace period before initiating eviction proceedings. When the payments continued to be more than sixty days late, he gave the Millers notice in July of 2009 that they had until January of 2010 to make arrangements to repurchase the land or move. According to Lenard, the Millers made their last payment in October of 2009, and when they did not comply with his July 2009 ultimatum in January of 2010, he decided to evict them.

| fiIn its written reasons for judgment, the trial court accepted Antonial’s interpretation of the July 24, 2008 transaction, saying it “was anything but a traditional cash sale,” and that “[s]everal questions were left unanswered which prevent the court from accepting Mr. Jackson’s position.” The trial court summarized its analysis of the facts as follows:

By Mr. Jackson’s testimony, he had a sale for the property shortly after the purported transfer for the sum of $65,000.00. Why would Mr. Miller agree to sell property worth $65,000.00 for the sum of $25,000.00 as recited in the sale? Testimony established that Mr. Miller did owe Mr. [Fontenot] approximately $16,000.00 and that the sales price was used to extinguish that debt. Also, it was established that Mr. Jackson borrowed $25,000.00 at a local bank and set up monthly payments. Loan proceeds were transferred to Mr. [Fontenot] and Mr. Miller. An actual sale of the property for its actual worth would have resulted in payment to Mr. [Fontenot] and a great deal more in Mr. Miller’s pocket.
In addition, Mr. Jackson testified that he agreed to allow Mr. Miller to redeem or buy back the property. Mr. Miller was to pay a monthly amount which was suspiciously close to the amount owed on the bank note. Mr. Miller was allowed to continue to live on the property and was expected to pay insurance and taxes. No testimony or evidence was admitted as to the time or circumstances applicable to the redemption of the property, but obviously the intent was not to have Mr. Jackson obtain free and unencumbered ownership of the property in question immediately upon signing of the “cash sale.”
The consideration for the cash sale also poses a question. Despite reciting $25,000.00 on the “cash sale”, the same amount borrowed at the bank, Mr. Jackson testified that he had also loaned money to Mr. Miller prior to transfer and had obtained IOUs. No IOUs were introduced at trial. In other testimony, Mr. Jackson stated that he gave Mr. Miller money because he was buying the house and property all along. Again, no proof was introduced. Which was it — a purchase or loans? If either were true, why wouldn’t the “cash sale” recite a consideration which included past payments or advances?
The most logical explanation for the actions of the parties would be that Mr. Miller needed quick cash and a person in whose name he could temporarily place his property until he was in a financial position to assume ownership. Mr. Jackson was willing to take a chance on supplying Mr. Miller’s needs with the collateral or assurance that the land and home would protect his actions. In short, Mr. Miller was betting that he could pay back the loan and put the property in his name within a reasonable time period and Mr. Jackson was betting that Mr. Miller would fail in his efforts and, as a result, Mr. Jackson would end up with ownership of a house and land at a great déal. Neither party was willing to confess his complete intentions on paper and, as a result, |7proper documentation was totally absent. When each side attempted to push them position, the instant litigation resulted.

With regard to the consequences of these actions, the trial court stated:

Consequently, it is the finding of the court that the transaction at issue was in the nature of a sale with right of redemption and that the purported sale was to be a form of security for the advancement of funds. As such, in accordance with L.C.C. Art. [2569], the sale was a simulation. No express provision was made as to the period of redemption and Louisiana law only provides a maximum period of ten years for redemption under L.C.C. Art. 2568. It is noted that the purported sale was dated July 24, 2008 and the loan for the advancement of funds was dated July 25, 2008. These dates also tend to affirm the position that the sale was made for security purposes prior to the incurring of the funding debt. Also, the promissory note executed by the Jacksons had a five year term, with monthly payments and a 7% interest rate. One is left to assume [therefore] that the redemption period was five years.
The only issue remaining would then be whether Mr. Miller violated the terms of the agreement by failing to make monthly payments as agreed. While the evidence presented tended to establish that Mr. Miller was indeed late on at least one or two payments, late fees were paid and accepted. No evidence of a putting in default was presented and, to forfeit the security for a late payment, without default, would be unjust. See L.C.C. Arts. 1989, 1991, and 2015.

In their appeal, the Millers raise five assignments of error:

1.Once the Lower Court correctly determined that the purported sale of the subject property from Mr. Fon-tenot to Mr. Jackson, dated July 24, 2008 was definitely a “simulation provided for security purposes”, did the Court abuse its discretion by characterizing the form of security as a sale with the right of redemption?
2. Once the Lower Court decided that the purported sale of the subject property from Mr. Fontenot to Mr. Jackson, dated July 24, 2008 was actually a “simulation provided for security purposes”, did the Court erroneously misinterpret and/or wrongly apply the law regarding vendor/debtors’ rights and vend-ee/creditors’ obligations regarding the due process required under Louisiana’s Law when seizing and selling immovable property securing a debt to satisfy an obligation?
3. Once the Lower Court decided that the purported sale of the subject property from Mr. Fontenot to Mr. Jackson, dated July 24, 2008 was actually a “simulation provided for security purposes”, did the court commit manifest error in requiring a debtor to satisfy an obligation in as little as 60 days when his only asset was already pledged to secure that same obligation as well as being burdened by an additional mortgage placed on the same asset, by the same creditor, without first requiring that creditor to remove the cloud he placed on the title of the debtor’s asset for creditor’s own benefit?
|s4. Now that the Lower Court has determined that a purported sale of the subject property from Mr. Fon-tenot to Mr. Jackson, dated July 24, 2008 was actually a “simulation provided for security purposes”, and the collateral securing that obligation is presently in the possession of the creditor, should not this matter be remanded to determine whether or not the proper procedures and due process protections have been observed by the creditor and if not, the extent of unjust enrichment and/or damages, if any, that may have been incurred in not doing so, including court costs and attorney fees.
5. Once the Lower Court decided that the purported sale of the subject property from Mr. Fontenot to Mr. Jackson, dated July 24, 2008 was actually a “simulation provided for security purposes”, did the Court commit manifest error in failing to decide whether or not the security agreement between the parties was even breached in the first place?

In their answer to the appeal, the Jack-sons asserted that the trial court erred in five respects:

a) The Cash Sale from Larry Jones Fontenot and Verona Deville Fonte-not (Act# 567013, dated July 24, 2008) to Lenard Keith Jackson, and his wife, Donna K. Guillory, was a “simulation provided for security purposes;”
b) Parole evidence was allowed to negate or vary the contents of an authentic act;
c) Third parties (Antonial Miller and Michelle Miller) were allowed to attack an authentic act between other parties to a valid, recorded conveyance instrument.
d) Plaintiffs had a right to specific performance of an “oral” contract (or to redeem the property) within a certain time period (60 days).
e) Donna Jackson’s interest in the 6.64 acres was also included in the Judgment as rendered.

OPINION

The Jacksons’ Second and Third Assignments of Error

Because they are central to the trial court’s factual conclusions, we first consider the second and third assignments of error asserted by the Jacksons. In these assignments, the Jacksons question whether the trial court erred in allowing parol evidence to vary the terms of the cash sale deed executed by the Fontenots.

|3The July 24, 2008 cash sale deed was an authentic act in that it was executed before a notary public and in the presence of two witnesses. La.Civ.Code art. 1833. The general rule is that “[tjestimonial or other evidence may not be admitted to negate or vary the contents of an authentic act.” La.Civ.Code art. 1848. However, “in the interest of justice, [testimonial or other evidence] may be admitted to prove such circumstances as a vice of consent, or a simulation, or to prove that the written act was modified by a subsequent and valid oral agreement.” Id. (emphasis added). Thus, the trial court properly admitted parol evidence and considered it for the purpose of determining whether the 2008 transaction between the Fontenots and the Jacksons is a simulation. We find no merit in these assignment of error.

The First Assignment of Error of both the Millers and the Jacksons

In these assignments of error, both the Millers and the Jacksons assert error in the trial court’s determination that the July 24, 2008 transaction was a simulation provided for security purposes. The Millers agree with the trial court’s classification but assert that the trial court erred in characterizing the transaction as a sale with the right of redemption. The Jack-sons, on the other hand, assert that the trial court erred in concluding that the transaction was in fact a simulation provided for security purposes.

Louisiana Civil Code Article 1906 provides that “[a] contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished.” A simulation contract is one which “by mutual agreement ... does not express the true intent of the parties.” La.Civ.Code art. 2025. A simulation contract can be one of two types: absolute and relative. “A simulation is absolute when the parties intend that their contract shall produce no effects between them. That simulation, therefore, can have no effects between the parties.” La.Civ.Code art. 2026. On the other hand, “[a] simulation is relative when the parties intend that their contract shall produce effects between them though different from those recited in their contract.” |inLa.Civ.Code art. 2027. With regard to the effects of a relative simulation, it “produces between the parties the effects they intended if all requirements for those effects have been met.” Id. The revision comments to La. Civ.Code art. 2027 note that “[u]nder this Article, a simulated sale with right of redemption may be a valid security contract.” Finally, “[a]ny simulation, either absolute or relative, may have effects as to third persons.” La.Civ.Code art. 2028.

The right of redemption is the seller’s right to take back the property from the buyer. La.Civ.Code art. 2567. When the property at issue is an immovable, the right of redemption may not be reserved for more than ten years. La.Civ.Code art. 2568. “If the seller does not exercise the right of redemption within the time allowed by law, the buyer becomes unconditional owner of the thing sold.” La.Civ. Code art. 2570. Although the seller is entitled to receive the property free of any encumbrances placed on it by the buyer, the rights of third parties are governed by the laws of registry. La.Civ.Code art. 2588.

The issue of whether an act is simulated is an issue of fact. Ridgedell v. Succession of Kuyrkendall, 98-1224 (La.App. 1 Cir. 5/19/99), 740 So.2d 173. Because a resolution of the simulation dispute depends on factual findings, this court reviews the trial court’s findings for manifest error. Pelican Outdoor Adver., Inc. v. Eugene, 01-94 (La.App. 5 Cir. 4/24/01), 786 So.2d 184, writ denied, 01-1518 (La.8/31/01), 795 So.2d 1214.

In its reasons for judgment, the trial court concluded that the July 24, 2008 transaction occurred because Antonial “needed quick cash and a person in whose name he could temporarily place his property until he was in a financial position to assume ownership.” The trial court concluded that the Jacksons supplied the solution to his dilemma, not by purchasing the property with nothing more than a vague right of first refusal to Antonial as asserted by Lenard, but by purchasing the property with a right of redemption provided to Antonial. The trial court found that the right of |n redemption was to exist for a period of five years, or until the $15,000.00 balloon note came due at Citizens Bank. However, the trial court also found that the terms of the right of redemption included Antonial’s obligation to timely pay the $300.00 monthly payment, which it classified as partial repayment of the $25,000.00 loan from Citizens Bank to the Jacksons, and not rent as Lenard asserted.

The trial court’s determinations in this regard are factual findings, and we find no manifest error in them. That being the case, we find no merit in the Millers’ assertion that the trial court erred in concluding that the July 24, 2008 agreement was a sale with right of redemption, nor do we find merit in the Jacksons’ assertion that the trial court erred in finding that the same agreement was anything other than a complete transfer of the 6.64 acres to them in full ownership subject only to a right of first refusal to the Millers in the event the Jacksons decided to sell the property.

The Millers’ Remaining Assignments of Error

And The Jacksons’ Fourth Assignment of Error

These assignments of error either continue to address the particulars of the simulation or the remedy imposed by the trial court. All four of the Millers’ assignments of error characterize the simulation as one “provided for security purposes” but in doing so, conclude that it should be treated as if title never changed hands. The Jacksons complain that the Millers are not entitled to specific performance of an oral contract dealing with immovable property. In their assignment of error, they too argue that the trial court never specifically identified the nature of the oral contract. Additionally, they argue that nowhere in the record was a price established for the simulated sale. We find no merit in these arguments as the record reflects otherwise.

As previously stated, the trial court found that the agreement was one provided for security purposes and that the parties intended that title change hands. The trial court stated in its reasons for judgment that, “Mr. Miller was betting that he could pay back the loan and put the property in his name within a reasonable time period and Mr. Jackson was betting that Mr. Miller would fail in his efforts and, as a result, Mr. Jackson would end up with ownership of a house and land at a great deal.”

After having concluded that a transfer of title took place, the trial court also concluded that the agreement gave the Millers five years in which to redeem the property, and that during these five years they were to pay the Jacksons $300.00 per month with the payment to be credited toward satisfaction of the $25,000.00 debt evidenced by the proceeds from the mortgage which were used to pay Antonial’s debt to Larry. Additionally, the trial court concluded that timely payment of the $300.00 per month was a condition of the agreement, and that failure to make timely payments in that regard triggered the right of the Jacksons to have full ownership provided they too complied with all other terms. The sixty-day grace period testified to by Lenard was accepted by the trial court as a condition of the agreement, but not in the context of a landlord/tenant relationship as suggested by Lenard.

The trial court found that the Millers breached the terms of the agreement in that they were sometimes delinquent in making their payments, and that the Jack-sons breached the terms of the agreement by claiming a landlord/tenant relationship and by seeking to recover the appraised value of the property rather than the indebtedness the property secured. In an effort to do justice in this rather bizarre factual situation, the trial court stated in its reasons for judgment the following with regard to the relief to which each litigant was entitled:

[ 13Mr. Miller is granted sixty (60) days from the date of these reasons to repay the Jacksons for the full sum of $25,000.00 borrowed and advanced, together with 7% interest until paid, less credit for any amounts of principal and interest previously paid and accepted, together with all costs of these proceedings. If full payment is not made timely, title to the property in question shall be vested in the Jacksons’ names. If paid timely, title to the property in question shall be transferred by order of this court to Mr. Miller and the Jacksons shall be ordered to remove any and all subsequent encumbrances affecting the property in question at their expense within 60 days of full payment.

In their February 23, 2010 petition, the Millers sought in their principal demand to prevent the Jacksons from selling the property and sought recognition of their right to redeem the property. The remedy carved out by the trial court gives them the relief they prayed for. Additionally, the remedy places the Jacksons into the same position there were in before they entered into this ill-advised transaction. In this case, both litigants are entitled to specific performance from the other. La. Civ.Code art.1986.

With regard to the Millers’ complaint that sixty days is not sufficient time to satisfy the obligation to repay the Jack-sons for the money advanced on their behalf, we note that Antonial has hidden ownership of this property for over nine years from creditors, including the Internal Revenue Service, and has had more than adequate time in which to remedy his financial matters. Because of this litigation, the world now knows of his ownership and there is no reason to delay the transfer of title. Additionally, he will be the owner of immovable property appraised at $65,000.00 and owes less than $25,000.00. We find no error in the remedy carved out by the trial court in this matter.

We find no merit in these assignments of error.

The Jacksons’ Final Assignment of Eiror

In their final assignment of error, the Jacksons complain that the judgment is silent as to Donna’s involvement in the litigation. We agree. Donna was a party to the cash sale deed as well as the mortgage at issue in this litigation and is a named [ 14defendant in the litigation. However, the judgment executed by the trial court couches all of the rights and obligations arising from the judgment in Lenard’s name only.

We amend the trial court judgment to substitute “Lenard K. Jackson and Donna K. Guillory Jackson” at every point in the judgment where the name “Lenard K. Jackson” appears.

DISPOSITION

For the foregoing reasons, we affirm the trial court judgment in all respects except to amend the judgment to substitute “Lenard K. Jackson and Donna K. Guillory Jackson” at every point in the judgment where the name “Lenard K. Jackson” appears. We assess all costs of this appeal equally between Antonial K. Miller and Michelle Miller and Lenard Keith Jackson and Donna K. Guillory Jackson.

AFFIRMED AS AMENDED.

      . The pleadings and testimony conflict on the exact purchase price. Some testimony suggests that the actual purchase price was $65,000.00 and other testimony suggests that the transaction included an initial payment of $50,000.00 with a later payment of $20,000.00.

      . Larry's recollection of the disbursement of funds was rather vague. However, the disbursement records establish the amounts set forth herein. Additionally, Larry testified that whatever he received was repayment for amounts he had loaned Antonial. This assertion is not disputed by Antonial.

      . Unfortunately, in the same sentence wherein the trial court concluded that the July 24, 2008 transaction "was in the nature of a sale with right of redemption,” (emphasis added), the trial court used the word "purported” to describe the transaction. Use of “purported” later in the same paragraph might raise questions concerning the trial court’s ultimate conclusion concerning the nature of the agreement, but a complete reading of the reasons for judgment make it clear to this court that the trial court concluded the transaction was a sale translative of title.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    Perry M. WESTBROOK v. Katherine Broussard WEIBEL.
    No. 11-910.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 7, 2011.
    Rehearing Denied Jan. 18, 2012.

      Michelle D. Bradley, Attorney at Law, APLC, Lake Charles, LA, for Plaintiff/Appellant, Perry M. Westbrook.

      Howell D. Jones, IV, Law Firm of Howell D. Jones, IV, Alexandria, LA, for Defendant/Appellee, Katherine B. Weibel.
    Court composed of OSWALD A. DECUIR, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   GENOVESE, Judge.

|TIn this child custody case, the father, Perry M. Westbrook (Perry), appeals the trial court’s judgment awarding the mother, Katherine B. Weibel (Kathy), sole custody of their minor child, Isabella Marie Westbrook (Isabella), subject to scheduled visitation. For the following reasons, we affirm in part, reverse in part, and render.

FACTUAL AND PROCEDURAL BACKGROUND

Perry and Kathy were married in December of 2005. One child, Isabella, was born of their marriage on April 20, 2006. Perry filed for divorce in November of 2006, and the divorce was final in July of 2007.

Initially, in 2007, when the parties first divorced, Perry and Kathy each filed pleadings seeking custody of Isabella. Pursuant to a hearing held in November of 2007, the parties agreed to joint custody of Isabella. This agreement was memorialized in a written Consent Judgment Custody Implementation Order and filed into the court’s record on March 5, 2008.

In September of 2009, joint custody of Isabella was transferred to Perry’s mother, Irma Westbrook, and Kathy’s sister, Maria Kamrowski, with Perry and Kathy having only supervised visitation, pending an investigation into alleged sexual abuse of Isabella. Pursuant to a hearing held in November of 2009, Perry and Kathy entered into an agreement wherein they would share (50/50) custody of Isabella. This agreement, however, was not memorialized into a written Stipulated Judgment and filed into the court’s record until June 29, 2010.

Also on June 29, 2010, Perry filed an Ex Parte Petition for Temporary Sole Custody and [a] Rule to Show Cause for Contempt. Therein, Perry asserted that |2the shared (50/50) custody arrangement was detrimental to Isabella due to Kathy’s refusal to comply with numerous provisions contained in the Stipulated Judgment.

On September 22, 2010, Kathy filed a Petition for Modification of Custody and Rule for Contempt. Therein, Kathy asserted that “the parties have experienced significant difficulty with co-domiciliary status and with confusion over visitation times.” Kathy sought to change the shared (50/50) custody arrangement, specifically requesting “that custody and visitation be re-evaluated by the [cjourt, that [she] be awarded domiciliary status over the minor child, [and] that Perry be granted reasonable visitation as this [c]ourt directs[.]”

Following a two-day hearing held on October 4, 2010, and December 9, 2010, the trial court issued Written Reasons on December 16, 2010, awarding sole custody of Isabella to Kathy and setting a visitation schedule on behalf of Perry. Also, in its Written Reasons, the trial court “de-clinefd] to hold either party in contempt at this time.” A judgment consistent with the trial court’s written reasons was signed March 9, 2011. From this judgment, Perry appeals.

ASSIGNMENTS OF ERROR

Perry asserts six assignments of error:

1. The trial court erred by granting appellee sole custody of the minor child because she did not prove by clear and convincing evidence that sole custody was in the best interest of the child.
2. The trial court erred by not granting appellant sole custody of the minor child in light of the clear and convincing evidence of irreparable harm and alienation from the appellant that the child was subjected to by the appellee as well as the emotional abuse the child suffered as a result of the actions of appellee.
3. The trial court erred when it failed to apply the La.Civ.Code art. 134 factors as required by La.Civ.Code art. 131 in granting the modification of custody.
4. The trial court erred in failing to hold appellee in contempt of court despite the overwhelming evidence to the contrary.
|s5. The trial court erred in that its reasons do not articulate the theory or the evidentiary facts upon which its conclusion is based and the trial court’s findings of fact and reasons are not clearly implied by the record.
6. The trial court erred in failing to apply the standards under La.R.S. 9:362 concerning child custody where there is a history of family violence.

LAW AND DISCUSSION

An appellate court cannot set aside a trial court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse those findings even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.

The standard of review in child custody matters has been clearly stated by this court:

The trial court is in a better position to evaluate the best interest of the child from its observance of the parties and witnesses; thus, a trial court’s determination in a child custody case is entitled to great weight on appeal and will not be disturbed unless there is a clear abuse of discretion.
Hawthorne v. Hawthorne, 96-89, p. 12 (La.App. 3 Cir. 5/22/96), 676 So.2d 619, 625, writ denied, 96-1650 (La.10/25/96), 681 So.2d 365.

Gremillion v. Gremillion, 07-492, p. 4 (La.App. 3 Cir. 10/3/07), 966 So.2d 1228, 1231-32.

In his first assignment of error, Perry submits that the trial court erred in granting Kathy sole custody of Isabella. Based on the recent holding of our supreme court in Griffith v. Latiolais, 10-754 (La.10/19/10), 48 So.3d 1058, we agree that Perry’s first assignment of error has merit.

|4In Griffith, 48 So.3d at 1070, our supreme court elaborated on the heightened evidentiary burden to be applied when a party seeks sole custody as follows:

Pursuant to the 1993 Revisions to the child custody provisions, joint custody is no longer presumed to be in the best interest of the child; however, it is mandated unless (1) there is an agreement between the parents to the contrary which is in the best interest of the child, or (2) one parent shows by clear and convincing evidence that sole custody to that parent would serve the best interest of the child. [La.Civ.Code] art. 132. “Clear and convincing” evidence is applied in civil cases only in exceptional circumstances, “where there is thought to be special danger of deception, or where the court considers that the particular type of claim should be disfavored on policy grounds.” Talbot v. Talbot, 03-814 (La.12/12/03), 864 So.2d 590, 598 (citing Succession of Lyons, 452 So.2d 1161, 1165 (La.1984) and McCormick on Evidence, § 340(b), p. 798 (2d ed.1972)). “The clear and convincing standard requires a party to prove the existence of a contested fact is highly probable, or much more probable than its non-existence.” Id.

In Griffith, the trial court awarded the parents shared (50/50) custody. The mother appealed, asserting that the trial court erred in not awarding her sole custody. The appellate court found no manifest error in the trial court’s factual findings, but did find an abuse of discretion by the trial court in ordering shared (50/50) custody. The appellate court reversed the shared custody award and awarded sole custody to the mother. The supreme court reinstated the trial court’s award of shared (50/50) custody on the basis that sole custody was neither prayed for nor supported by the evidence contained in the record. We find Griffith analogous to the case sub judice.

Kathy requested a modification of the visitation schedule and to be designated as the domiciliary parent; she did not request that the arrangement be changed to sole custody. Further, at trial, Kathy did not offer the testimony of an expert that the best interest of Isabella would be served by awarding her sole custody. In Griffith, 48 So.3d at 1070, the supreme court stated, “no expert, | r,including the experts charged with doing custody evaluations, testified that the best interest of the child would be served by awarding [the mother] sole custody. In fact, every expert testified that custody should be shared.” Though our review of the record does not find manifest error in the trial court’s factual findings, we do find that the trial court abused its discretion by awarding sole custody to Kathy when she did not seek sole custody and when the evidence does not meet the heightened burden that it is clearly and convincingly in Isabella’s best interest that Kathy be awarded sole custody. Therefore, we reverse the portion of the trial court’s judgment which awarded Kathy sole custody of Isabella.

Having found a lack of support for the sole custody award, we must determine whether there is any merit to Perry’s second assignment of error. In his second assignment of error, Perry asserts that the trial court’s failure to award him sole custody of Isabella was erroneous. We do not find merit in this contention. Though Perry did request that he be awarded sole custody of Isabella, the evidence does not support such a determination and no expert testified that the best interest of Isabella would be served by awarding him sole custody.

Louisiana Civil Code Article 131 mandates that “[i]n a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child.” Louisiana Civil Code Article 132 provides:

If the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the best interest of the child requires a different award.
In the absence of agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent.

|fiThus, La.Civ.Code art. 132 establishes a presumption of joint custody of the children. Having found that neither Kathy nor Perry have met the heightened eviden-tiary burden to be awarded sole custody, we award joint custody of Isabella to Kathy and Perry.

Louisiana Revised Statutes 9:335(B)(1) provides that “[i]n a decree of joint custody the court shall designate a domiciliary parent except when there is an implementation order to the contrary or for good cause shown.” In designating the domiciliary parent for purposes of a joint custody determination, consideration must be given to the statutory factors set forth in La.Civ. Code art. 134 in order to determine what is in the best interest of the children. The factors of La.Civ.Code art. 134 to be considered are as follows:

(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
17(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exei*-cised by each party.

Contrary to Perry’s contentions in his third assignment of error that the trial court failed to apply these statutory factors to determine what is in the best interest of Isabella, we find the trial court did consider the factors enumerated in La.Civ. Code art. 134. In considering these factors, the trial court stated in its Written Reasons that “the parties are either very close on each factor or both not in compliance with the item of consideration.” Based on our thorough review of the record, we find no manifest error in the trial court’s factual determinations. Applying the trial court’s findings to the factors set out in La.Civ.Code art. 134, we find that the factors weigh in favor of Kathy to support her designation as the domiciliary parent of Isabella, subject to the specific visitation privileges as set forth by the trial court.

As to Perry’s contention in his forth assignment of error that the trial court erred in failing to hold Kathy in contempt of court, we again find no merit. “A trial court is vested with great discretion to determine whether a party should be held in contempt for wilfully disobeying a trial court judgment.” Barnes v. Barnes, 07-27, p. 9 (La.App. 3 Cir. 5/2/07), 957 So.2d 251, 257 (citing Fink v. Bryant, 01-987 (La.11/28/01), 801 So.2d 346). There was testimony that both Kathy and Perry disobeyed the trial court’s judgment with respect to the visitation schedule due to their inability to communicate with one another. We find it was not an abuse of discretion for the trial court not to hold Kathy in contempt.

| ¡¡Contrary to Perry’s contentions in his fifth assignment of error that the trial court’s “reasons failed to articulate the theory or the evidentiary facts upon which its conclusion is based[,]” we find the trial court’s Written Reasons to be clear and concise and adequately support its conclusion. Further, this court’s thorough review of the record finds no merit to Perry’s assertion that “the trial court’s findings of fact and reasons are not clearly implied in the record.” The trial court’s findings of fact and reasons for judgment are sufficiently specific to support its judgment.

In his final assignment of error, Perry argues that the trial court should have applied the Post-Separation Family Violence Relief Act, La.R.S. 9:361-369, to the facts of this case because he alleges there is a history of family violence. Kathy counters, in brief, that Perry failed to raise this argument at the trial court level, and it cannot be considered for the first time on appeal. We agree.

In reviewing the record, we note that Perry had sufficient opportunity to prepare and submit this issue for consideration by the trial court, but, for whatever reason, elected not to do so. Therefore, we find this issue is not preserved for consideration, and we will not entertain an issue when it is being raised for the first time at the appellate level. See Stream Family Ltd. Partnership v. Marathon Oil Co., 09-561 (La.App. 3 Cir. 12/23/09), 27 So.3d 354, writ denied, 10-196 (La.4/16/10), 31 So.3d 1064; see also Uniform Rules— Courts of Appeal, Rule 1-3.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed relative to its failure to hold Katherine B. Weibel in contempt of court, and the judgment of the trial court is reversed to the extent that it granted sole custody of Isabella Marie Westbrook to Katherine B. Weibel. We render judgment awarding Perry M. West-brook and Katherine B. Weibel joint custody of Isabella Marie Westbrook, |9subject to the specific visitation privileges in favor of Perry M. Westbrook as set forth by the trial court. We further render judgment designating Katherine B. Weibel as the domiciliary parent. The costs of this appeal are to be split equally by Perry M. Westbrook and Katherine B. Wiebel.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . All allegations were against Perry, not Katherine. No allegations against Perry were ever validated.


text:
    Dr. Harry KLEINMAN v. William Patrick BENNETT.
    No. 11-947.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 7, 2011.

      Scott J. Pias, Lake Charles, LA, for Defendant/Appellant, William Patrick Bennett.
    P. David Olney, Lake Charles, LA, for Plaintiff/Appellee, Dr. Harry Kleinman.
    Court composed of OSWALD A. DECUIR, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   GENOVESE, Judge.

[ i Defendant, William Patrick Bennett, appeals the trial court’s grant of summary judgment in favor of Dr. Harry Kleinman. For the following reasons, we reverse the trial court judgment and remand the matter to the trial court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On August 9, 2010, Dr. Kleinman filed a lawsuit alleging that Mr. Bennett owed him money. According to Dr. Kleinman’s petition, Mr. Bennett “is indebted to [him] in the amount of ... ($34,743.64) with ten percent (10%) interest thereon from June 6, 2001, until paid, and for all costs of this suit[.]” Dr. Kleinman’s petition further alleges “[o]n June 5, 2001, [he] loaned $34,743.64 to [Mr. Bennett], and [at] that time, [Mr. Bennett] gave [him] an TOU’ dated June 5, 2001, and indicating the amount of the loan plus [ten percent] interest.” Finally, Dr. Kleinman acknowledges that “[o]n April 5, 2005, [Mr. Bennett] paid $15,000.00, and on April 6, 2005, [Mr. Bennett] paid an additional $5,000.00 towards the debt.” Mr. Bennett filed an answer, in proper person, on August 24, 2010, denying all allegations set forth in Dr. Kleinman’s petition.

On January 31, 2011, Dr. Kleinman filed a Motion for Summary Judgment asserting:

[He] is entitled to a Summary Judgment granting the relief prayed for in his petition on the grounds that the pleadings and documents on file herein, and the sworn Affidavits annexed hereto ... show that there is no real or genuine issue as to any material fact and [that he was] entitled to [judgment] as a matter of law[.]

In support of his motion, Dr. Kleinman submitted two affidavits: his own, and an affidavit from John S. Hood. The assertions contained in Dr. Kleinman’s affidavit mirror every allegation set forth in his petition, with the addition of one allegation, namely:

|2Prior to [Mr. Bennett’s] payments [made on April 5, 2005 and April 6, 2005, Dr. Kleinman] delivered to counsel for [Mr. Bennett] the subject “IOU” (along with some other “IOU”s) in an attempt to get some of the debts satisfied. When the “IOU”s were copied and returned to [him], the subject “IOU” was not returned, and [he] has not seen it since that time.

The affidavit of Mr. Hood asserted that he is an attorney and that he was present in a representative capacity on behalf of Dr. Kleinman during alleged settlement negotiations which occurred prior to the instant suit being filed. According to Mr. Hood:

On June 18, 2009, representing [Dr. Kleinman], he met with [Mr. Bennett] and his attorney, Jay Delafield[,] at Mr. Delafield’s office to discuss the balance due and payment arrangements on the original loan of $34,743.04 [sic]. Mr. [Bennett]’s payments of $15,000.00 and $5,000.00 were acknowledged, and payment of the balance was discussed. At that point, there was a dispute as to the amount of interest on the loan, and Mr. [Bennett] indicated he would pay the principal only on the balance remaining, $15,000.00, by the end of the year.

The record indicates that on February 24, 2011, Mr. Bennett, in proper person, filed a Reconventional Demand and a Motion and Order for Continuance. In his Reconventional Demand, Mr. Bennett alleged that Dr. Kleinman owed him money as a result of a “business relationship.” Mr. Bennett sought a judgment “rejecting [Dr.] Kleinman[’]s demands and condemning [Dr. Kleinman] to pay [him] such damages as are reasonable[.]” Mr. Bennett’s Motion and Order for Continuance sought to delay the hearing set for March 4, 2011, on Dr. Kleinman’s Motion for Summary Judgment, in order “to allow for discovery to take place in the [R]econventional Demand filed this day in this matter.” The trial court denied Mr. Bennett’s request for a continuance.

The hearing on Dr. Kleinman’s Motion for Summary Judgment was held on March 4, 2011. At said hearing, Mr. Bennett was represented by counsel. Counsel for Mr. Bennett sought to enter an oral plea of prescription; however, the trial court 1 ..¡declared, “you can do that on appeal. You can do that after a judgment, but I’m not going to on the day of a hearing on a summary judgment allow the defendant to disrupt the orderly process of the case.” After hearing arguments by both counsel which focused primarily on whether this matter had prescribed, the trial court granted Dr. Kleinman’s Motion for Summary Judgment. A judgment was signed on March 22, 2011, in favor of Dr. Kleinman and against Mr. Bennett “in the full sum and amount of $34,743.64, with 10% interest per annum, from June 6, 2001, until paid, subject to a credit of $20,000.00, and. for all costs of these proceedings.” Mr. Bennett has appealed.

ASSIGNMENTS OF ERROR

Mr. Bennett asserts the trial court erred: (1) “in giving weight to the self[-]serving [a]ffidavit of [John S. Hood;]” (2) “in granting the Motion for Summary Judgment despite the genuine issue of material fact[;]” and (3)

in granting a judgment on amount owed when[,] on the face of pleadings, the loan had prescribed and no specific evidence of any acknowledgement of the debt to interrupt or suspend prescription. [Mr. Bennett’s r]econventional demand alleged amounts owed by [Dr. Kleinman to Mr. Bennett] which offsets any amount owed by [Mr. Bennett].

DISCUSSION

Standard of Review

“Appellate courts review summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, and in the light most favorable to the non-movant.” Yokum v. 615 Bourbon Street, L.L.C., 07-1785, p. 25 (La.2/26/08), 977 So.2d 859, 876 (citing Suire v. Lafayette City-Parish Consol. Gov’t, 04-1459 (La.4/12/05), 907 So.2d 37). Louisiana Code of Civil Procedure Article 966(A)(2) states “[t]he summary judgment procedure is designed to secure the just, speedy, and inexpensive ^determination of every action,” and this “procedure is favored and shall be construed to accomplish these ends.” “[I]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact,” then judgment shall be granted as a matter of law in favor of the mover. La.Code Civ.P. art. 966(B) and (C). Dr. Kleinman, as the movant herein, bears the initial burden of proof and must show that no genuine issue, of material fact exists. La.Code Civ.P. art. 966(C)(2). If he successfully meets his burden, then the burden shifts to Mr. Bennett to present factual support adequate to establish that he will be able to satisfy his evidentiary burden at trial. Id. If Mr. Bennett fails to produce the factual support necessary to establish that he will be able to satisfy his evidentiary burden of proof at trial, then there is no genuine issue of material fact. Id.

A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.

Hines v. Garrett, 04-806, p. 1 (La.6/25/04), 876 So.2d 764, 765-66.

After reviewing the record, we find this suit is not ripe for disposition by summary judgment. The trial court erred in granting summary judgment in favor of Dr. Kleinman. In Edwards v. Larose Scrap & Salvage, Inc., 10-596, p. 3 (La.App. 3 Cir. 12/8/10), 52 So.3d 1009, 1011-12 (quoting Brittain v. Family Care Servs., Inc., 34,-787, p. 4 (La.App. 2 Cir. 6/20/01), 801 So.2d 457, 460), this court stated the following principals by which we are guided:

Even though the summary judgment procedure is favored, it is not a substitute for trial and is often inappropriate for judicial determination of subjective facts such as motive, intent, good faith or knowledge. Oaks v. Dupuy, 32,070 (La.App.2d Cir. 8/18/99), 740 So.2d 263, (citing Greer v. Dresser Industries, Inc., 98-129 (La.App. 3d Cir.7/1/98), 715 So.2d 1235). One reason is that these subjective facts call for credibility evaluations and the weighing of testimony and summary judgment is inappropriate for such determinations. Id. Moreover, it is not a function of the trial court on a motion for summary judgment to determine or even inquire into the merits of issues raised or to weigh conflicting evidence on the existence of material facts.

In the instant matter, there are questions of material fact as to how much, if anything, is owed by Mr. Bennett to Dr. Kleinman, what amount of interest was agreed upon by Mr. Bennett, and what amount Dr. Kleinman owes, if anything, to Mr. Bennett for alleged storage fees as asserted in Mr. Bennett’s reconventional demand. The issue of Mr. Bennett’s re-conventional demand was not addressed by the trial court. Neither the affidavit of Dr. Kleinman nor the affidavit of Mr. Hood prove what, if anything, is owed by Mr. Bennett to Dr. Kleinman. Though the affidavit of Mr. Hood may support the finding that Mr. Bennett did acknowledge that he owes Dr. Kleinman money, it also clearly states that the question of how much interest Mr. Bennett owes was not agreed upon or acknowledged. Dr. Klein-man’s affidavit states that Mr. Bennett agreed to ten percent interest; however, the affidavit of Mr. Hood asserts that Mr. Bennett disputed the ten percent interest rate in the 2009 settlement negotiations that Mr. Hood witnessed. These disputed questions of material fact prohibit disposition by summary judgment.

Finally, though there was an oral motion of prescription made at the summary judgment hearing, Mr. Bennett has never filed an exception of prescription.

The peremptory exception of prescription may only be raised by the urging party and it must be specifically plead [sic] through a formal, written exception. La.Code Civ.P. art. 927. Arguing the issue either orally or in a memorandum to the court does not suffice. Box v. City of Baton Rouge, 02-198 (La.App. 1 Cir. 1/15/03), 846 So.2d 13; dela Vergne v. dela Vergne, 99-364 (La.App. 4 Cir. 11/17/99), 745 So.2d 1271.

Mesh v. Christus St. Patrick Hosp., 05-674, p. 2 (La.App. 3 Cir. 12/30/05), 918 So.2d 559, 560. Therefore, the issue of prescription is not before this court and cannot be considered.

Based on our de novo review, we find the evidence presented by Dr. Kleinman does not satisfy his burden of proving that no genuine issue of material fact exists. Dr. Kleinman has not demonstrated that he is entitled to summary judgment on his claim, and Mr. Bennett’s reconventional demand has not been addressed. This case must, therefore, proceed to trial on the merits. The trial court erred in granting Dr. Kleinman’s motion for summary judgment; therefore, the judgment of the trial court is reversed, and this matter is remanded for further proceedings.

DECREE

For the foregoing reasons, the Motion for Summary Judgment granted in favor of Dr. Harry Kleinman is reversed, and this matter is remanded to the trial court for further proceedings. All costs of this appeal are assessed to Plaintiff/Appellee, Dr. Harry Kleinman.

REVERSED AND REMANDED.


author: PICKETT, Judge.

text:
    Debra D. ASHMORE v. Merrell D. ASHMORE.
    No. 11-538.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 7, 2011.

      J. Phillip Terrell Jr., Pineville, LA, for Plaintiff/Appellee, Debra D. Ashmore.
    Charles 0. LaCroix, LaCroix, Levy & Barnett, LLC, Alexandria, LA, for Defendant/Appellant, Merrell D. Ashmore.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PICKETT, Judge.

11 Husband appeals judgment which holds that the community property regime which existed between him and his ex-wife when judgment of separation was obtained in 1979 “was reestablished in 1985 upon reconciliation of the parties.” For the following reasons, we reverse.

FACTS

Debra Domingue Ashmore and Merrell Ashmore were married in 1968. The parties were legally separated by a judgment dated September 7, 1979. The parties stated in a joint motion to continue, amend, and reset rule that they reconciled “several months” after the judgment of separation. On June 18, 2004, Ms. Ash-more filed a petition for divorce. A judgment decreeing a divorce between the parties was granted May 11, 2007.

After the divorce, when the Ashmores were attempting to partition the community property they owned, issues arose as to whether the community property regime that existed prior to the September 7,1979 judgment of separation was reestablished after they reconciled. Unable to resolve the issue, the Ashmores submitted it to the trial court for resolution. The trial court determined that “the community property regime was in full force and effect from June 29, 1968,” until September 27, 1979, and that it “was reestablished in 1985 upon reconciliation of the parties.”

Mr. Ashmore appealed the trial court’s judgment. He contends on appeal that the community property regime was never reestablished after the 1979 legal separation.

DISCUSSION

This appeal presents an issue of law which we review de novo. Kevin Assocs., L.L.C. v. Crawford, 03-211 (La.1/30/04), 865 So.2d 34. When Ms. Ashmore filed her petition for legal separation in 1979, La.Civ.Code art. 155 provided that the | {¡community property regime was not reestablished upon reconciliation unless the parties executed and recorded a notarial act. In 1979, Article 155 was amended, and, effective January 1, 1980, it provided for reestablishment of the community property regime by matrimonial agreement. The article was amended again in 1985 to provide for automatic reestablishment of the community property regime unless the spouses executed a matrimonial agreement to the contrary prior to their reconciliation. The 1985 amendment was determined to be substantive and, therefore, was not applied retroactively. La-Fleur v. Guillory, 181 So.2d 323 (La.App. 3 Cir.1965), writ refused, 248 La. 1099, 184 So.2d 24 (1966). See also Conner v. Conner, 515 So.2d 468 (La.App. 1 Cir.1987); Freeman v. Freeman, 430 So.2d 673 (La. App. 2 Cir.), writ denied, 435 So.2d 449 (La.1983).

The law governing the reestablishment of the community property regime was changed again in 1990, when the legislature enacted La.R.S. 9:384. Effective January 1, 1991, Section 384 contained the same language as Article 155 , recognizing the automatic reestablishment of the community property regime upon reconciliation, but made it retroactive for “[reconciled] spouses who were judicially separated by a judgment signed before January 1, 1991, or by a judgment rendered in an action governed by R.S. 9:381 [actions commenced before January 1, 1991].” Lastly, the law was changed in 1995 with regard to “spouses who were judicially separated by a judgment signed before January 1, 1991” to provide that if they reconciled after September 6, 1985, the community property regime was automatically reestablished “unless the spouses executed] prior to the reconciliation a matrimonial agreement that the community [property regime would] not be reestablished upon reconciliation.” La.R.S. 9:384.

The first circuit observed in McCarroll v. McCarroll, 95-1972, p. 7 (La.App. 1 Cir. 6/28/96), 680 So.2d 681, 687, rev’d on other grounds, 96-2700 (La.10/21/97), 701 So.2d 1280, that the 1995 limitation on reconciliation set forth in La.R.S. 9:384 “coincides with the 1985 amendment to La.Civ.Code art. 155 which initially provided for the automatic reinstatement of the community [property] regime upon reconciliation of the parties. Thus, under this act, community property regimes are automatically reestablished only when the parties reconciled after September 6,1985.”

The issue in McCarroll was whether the parties’ reconciliation after their 1977 legal separation, but prior to their 1980 divorce, reinstated the community property regime which existed between them before the legal separation. After thoroughly reviewing the changes in the law on this issue and the law governing retroactivity of legislation, the first circuit determined that “[b]eeause the McCarrolls reconciled prior to September 6, 1985, there [was] no automatic reestablishment of the community property regime.” Id. at 688. We agree with the first circuit’s reasoning and conclude that because the Ashmores reconciled prior to 1985, the community property regime that existed between them before the 1979 judgment of legal separation was not automatically reestablished. Accordingly, the judgment of the trial court is reversed.

DISPOSITION

The community of acquets and gains that existed between Debra and Merrell Ashmore prior to the 1979 legal separation was not thereafter reestablished. All costs of this appeal are assessed to Debra Ash-more.

REVERSED.

      . Article 155 was repealed upon enactment of La.R.S. 9:384.


text:
    Mark Glenn FENN and Mrs. Tiffany Fenn v. COLONY INSURANCE COMPANY, L.G. Enterprises, LLC d/b/a Cherokee Club and Brandon Johnson.
    No. 11-0809.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 7, 2011.

      Bobby L. Culpepper, Culpepper & Carroll, PLLC, Jonesboro, LA, for Plaintiffs/Appellants, Mark Glenn Fenn, Tiffany Fenn.

      Rodney J. LaCoste, Jr., Perrier & La-Coste, LLC, New Orleans, LA, for Defendant/Appellee, Colony Insurance Company.
    Mark A. Begnaud, McCoy, Roberts & Begnaud, Ltd., Natchitoches, LA, for Defendants/Appellees, L.G. Enterprises, LLC d/b/a Cherokee Club, Brandon Johnson.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, and JIMMIE C. PETERS and BILLY HOWARD EZELL, Judges.
   PETERS, J.

| ]This appeal is from a summary judgment interpreting insurance coverage. The plaintiffs in this litigation, Mark Glen Fenn and his wife, Tiffany Fenn, appeal the trial court’s grant of a summary judgment in favor of Colony Insurance Company that dismissed the insurance company from this litigation. For the following reasons, we affirm that judgment in all respects.

DISCUSSION OF THE RECORD

This litigation arises from a physical altercation that occurred at the Cherokee Club in Natchitoches Parish, Louisiana, on February 20, 2010. In that altercation, Mr. Fenn sustained serious bodily injuries when he was stabbed with a knife a number of times by another patron of the Club, Brandon Johnson. The plaintiffs brought suit to recover the damages they sustained and named as defendants Mr. Johnson; L.G. Enterprises, L.L.C., the owner of the Cherokee Club; and Colony Insurance Company (Colony), the Cherokee Club’s liability insurer. In their petition, the plaintiffs asserted that L.G. Enterprises was negligent in the following respects:

1.Failure to protect its business invitees from harm and injury;
2. Acts of negligence on the part of the bouncer employed by the Cherokee Club;
3. Failure to intervene in order to stop the battery being committed by Brandon Johnson;
4. Failing to properly supervise its personnel;
5. Failure to properly train bouncer and security personnel;
6. Allowing Brandon Johnson to drink excessively;
7. Other acts of negligence which will be shown on trial hereof.

L.G. Enterprises initially responded to the suit by filing an answer generally denying that it was liable to the plaintiffs for the damages sustained and by filing a cross-claim against Mr. Johnson. When Colony’s subsequent answer to the plaintiffs’ suit contained an assertion that its policy did not provide coverage for the February 20, 2010 incident, L.G. Enterprises filed a cross-claim against [2Colony seeking to require Colony to provide coverage and to provide a defense to the plaintiffs’ suit. Colony responded by filing the motion for summary judgment at issue in this appeal, wherein it asserted that the insurance policy issued to L.G. Enterprises provided no coverage for the plaintiffs’ damages. In making this argument, Colony relied on three provisions of the policy.

The first is the assault and battery exclusion, which reads as follows:

ASSAULT, BATTERY OR ASSAULT AND BATTERY EXCLUSION

This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART
A. SECTION I — COVERAGES, COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY, 2. Exclusions and SECTION 1— COVERAGES, COVERAGE B PERSONAL AND ADVERTISING INJURY LIABILITY, 2. Exclusions are amended and the following added:
Assault, Battery or Assault and Battery
This insurance does not apply to damages or expenses due to “bodily injury”, “property damage” or “personal and advertising injury” arising out of or resulting from:
(1) “Assault”, “Battery” or “Assault and Battery” committed by any person;
(2) The failure to suppress or prevent “Assault”, “Battery” or “Assault and Battery” by any person;
(3) The failure to provide an environment safe from “Assault”, “Battery” or “Assault and Battery”;
(4) The failure to warn of the dangers of the environment which could contribute to “Assault”, “Battery” or “Assault and Battery”;
(5) “Assault”, “Battery” or “Assault and Battery” arising out of the negligent hiring, supervision, or training of any person;
(6) The use of any force to protect persons or property whether or not the “bodily injury” or “property damage” or “personal and advertising injury” was intended from the standpoint of the insured or committed by or at the direction of the insured.
B. SECTION V — DEFINITIONS is amended and the following is added:
“Assault” means:
|sa. an act creating an apprehension in another of immediate harmful or offensive contact or
b. an attempt to commit a “Battery”. “Battery” means an act which brings about harmful or offensive contact to another or anything connected to another.
“Assault and Battery” means the combination of an “Assault” and a “Battery”.

The policy also includes an endorsement that expressly excludes from coverage bodily injury for which L.G. Enterprises may be held liable for contributing to the intoxication of another person:

TOTAL LIQUOR LIABILITY EXCLUSION

This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART
SECTION I — COVERAGES, COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY, 2. Exclusions, c. is deleted and replaced with the following:
This insurance does not apply to:
“Bodily injury” or “property damage” for which any insured may be held liable by reason of:
(1) Causing or contributing to the intoxication of any person;
(2) The furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol; or
(3) Any statute, ordinance or regulation relating to the sale, gift, distribution or use of alcoholic beverages.

Finally, the policy includes another endorsement that expressly excludes from coverage bodily injury arising out of or resulting from the use of a lethal weapon:

WEAPONS EXCLUSION

This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART SECTION I — COVERAGES, COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY, 2. Exclusions is amended and the following added:
|4Use of Weapons
This insurance does not apply to “bodily injury”, “property damage” or “personal and advertising injury” arising out of or resulting from the possession, ownership, maintenance, use of or threatened use of a lethal weapon, including but not limited to firearms by any person.

After a February 18, 2011 hearing, the trial court concluded that “the policy excludes the coverage for the allegations under the petition” and granted Colony’s motion for summary judgment. On March 21, 2011, the trial court executed a judgment dismissing Colony from all aspects of the litigation. In their sole assignment of error, the plaintiffs assert that the trial court erred as a matter of law in granting the summary judgment. L.G. Enterprises did not appeal the judgment. Instead, it filed a brief in its capacity as a defendant-appellee wherein it attempted to argue that regardless of the coverage issue, Colony owed it a defense.

OPINION

Appellate courts are to review grants of summary judgment de novo, and in doing so, we are to use the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, that is, whether there exists a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Ocean Energy, Inc. v. Plaquemines Parish Gov’t, 04-66 (La.7/6/04), 880 So.2d 1. In this case, there is no genuine issue of material fact, and the litigants agree that the coverage issue is a matter of interpretation of the policy.

An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Louisiana Civil Code. “Ambiguous policy provisions generally are to be construed against the insurer and in favor of coverage.” Carrier v. Reliance Ins. Co., 99-2573, p. 12 (La.4/11/00), 759 So.2d 37, 43. “[E]quivocal provisions seeking to narrow an insurer’s obligation are strictly construed against the insurer.” Id. ... [F]or strict construction to apply, the insurance policy must not only |sbe susceptible to two or more interpretations, but also each of the alternative interpretations must be reasonable.

Devillier v. Alpine Exploration Companies, Inc., 06-770, p. 11 (La.App. 3 Cir. 12/29/06), 946 So.2d 738, 745, writ denied, 07-191 (La.3/23/07), 951 So.2d 1105 (first alteration in original).

Whether or not a policy is ambiguous is a question of law. La. Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-911 (La.1/14/94), 630 So.2d 759.

On appeal, the plaintiffs concede that the trial court was correct in concluding that their third and sixth negligence assertions were excluded from coverage by Colony’s contract of insurance. However, they assert that the trial court erred in finding the first, second, fourth, and fifth negligence assertions are also precluded by the exclusions in Colony’s policy.

The plaintiffs’ first claim of negligence is based on L.G. Enterprises’ failure to protect its business invitee — Mr. Fenn — from harm and injury. However, in its “assault, battery or assault and battery exclusion,” the insurance policy expressly excludes recovery for damages that arise out of the failure to prevent or suppress a battery.

The plaintiffs’ second claim of negligence is based on the bouncer’s actions that night. But again, the insurance policy rules out coverage for any damages resulting from the failure to provide an environment safe from battery or the failure to suppress or prevent a battery.

The plaintiffs’ fourth and fifth claims of negligence are based on L.G. Enterprise’s failure to properly supervise its personnel and its failure to properly train its bouncer and security personnel. However, Colony’s insurance policy states that it does not provide coverage for damages due to bodily injury arising out of a battery caused by its “negligent hiring, supervision, or training of any person.”

lfiOur de novo review of the record leads us to the conclusion that the trial court did not err in finding that Colony’s insurance policy provides no coverage for any of the plaintiffs’ claims.

DISPOSITION

For the foregoing reasons, we affirm the trial court’s grant of summary judgment in favor of Colony Insurance Company that dismissed all claims against it by the plaintiffs, Mark Glenn Fenn and Tiffany Fenn, and by the defendant, L.G. Enterprises. We assess the costs of this appeal equally to Mark Glenn Fenn and Tiffany Fenn.

AFFIRMED.

      . In its brief L.G. Enterprises argues that regardless of the coverage issue, Colony owed it a defense. However, L.G. Enterprises did not file an answer to the appeal, as required under La.Code Civ.P. art. 2133. Filing a brief does not satisfy the article's requirements. Brewington v. La. Dep't of Corr., 447 So.2d 1184 (La.App. 3 Cir.), writ denied, 449 So.2d 1348 (La.1984). Accordingly, we do not address that issue.


author: DECUIR, Judge.

text:
    John BRISCOE v. McNEESE STATE UNIVERSITY, et al.
    No. 11-872.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 7, 2011.

      Mark Zimmerman, Attorney at Law, Lake Charles, LA, for Plaintiff/Appellee, John Briscoe.
    Elizabeth B. Hollins, Assistant Attorney General, Louisiana Department of Justice, Litigation Division, Lake Charles, LA, for Defendants/Appellants, McNeese State University, Office of Risk Management.
    Court composed of OSWALD A. DECUIR, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   DECUIR, Judge.

|,FACTS

John Briscoe (Briscoe) was employed by McNeese State University (McNeese) as a trades apprentice at Burton Coliseum. It is undisputed that Briscoe was injured on July 27, 2009, while installing flooring at Burton Coliseum. Furthermore, it is undisputed that he aggravated the injury on January 10, 2010, while putting together a steel livestock fence for a rodeo event. Briscoe’s relationship with his supervisor deteriorated progressively, and he was terminated on March 12, 2010. Briscoe filed a claim for workers’ compensation.

The workers’ compensation judge found that there is no doubt that Briscoe was injured and that the medical evidence supports that conclusion. The workers’ compensation judge further found that Briscoe was probably never McNeese’s star employee and that the situation was exacerbated by McNeese’s apparent inability to find or create suitable light-duty work for Briscoe. More specifically, the workers’ compensation judge found that McNeese took a rather cavalier attitude toward the opinion of Briscoe’s treating physician and failed to authorize physician-ordered lumbar injections. The workers’ compensation judge also found that McNeese made little effort to modify Briscoe’s job duties. The workers’ compensation judge found this attitude led to Briscoe working in pain doing jobs outside his restrictions and achieving unsatisfactory results for McNeese. The workers’ compensation judge found that McNeese used these unsatisfactory results and Briscoe’s pain-induced poor attitude as grounds for termination.

Accordingly, the workers’ compensation judge awarded Briscoe supplemental earnings benefits (SEB) based on zero earnings from March 12, 2010. In addition, the workers’ compensation judge ordered medical care, vocational rehabilitation, $6,000.00 in penalties, and $9,000.00 as attorney fees. McNeese [2lodged this appeal. Briscoe answered seeking an award of attorney fees for work on the appeal.

DISCUSSION

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. In applying the manifest error standard, the appellate court determines whether the factfinder’s conclusion was reasonable, not whether the trier of fact was right or wrong. Id. “[E]ven where the appellate court is convinced it would have weighed the evidence differently if it had been sitting as trier, the court of appeal may not reverse if the factfinder’s findings are reasonable in light of the record reviewed in its entirety.” Winford v. Conerly Corp., 04-1278, pp. 15-16 (La.3/11/05), 897 So.2d 560, 569-70.

McNeese’s first two assignments of error allege that the workers’ compensation judge erred in awarding SEB to Bris-coe because they did not know of his inability to do his prior job and because he was fired for reasons unrelated to his injury. We disagree.

Entitlement to SEB is provided by La. R.S. 23:1221(3), under which the threshold prerequisite to recovery is that the employee’s injury results in his inability to earn wages equal to ninety percent of the wages he was earning at the time of the injury. In this case, the workers’ compensation judge found that McNeese fired Briscoe because he could not satisfactorily complete his assigned job tasks. The workers’ compensation judge found Bris-coe’s firing, medical records, and his un-rebutted testimony that he could not find anyone else to hire him was sufficient to establish his entitlement to SEBs. In view of McNeese’s failure to offer evidence of available jobs for Briscoe, we cannot say the workers’ | .¡compensation judge’s findings are manifestly erroneous. These assignments have no merit.

McNeese next contends that the workers’ compensation judge erred in ordering vocational rehabilitation services where they were not pled, and there is no evidence that Briscoe cannot accomplish his present job. We find the pleadings requesting all benefits to which Briscoe is entitled to be sufficient. Likewise, our resolution of the previous issue together with the testimony of General Manager Jared LeBlue informing McNeese Human Resources Director Charlene Abbott that there was not much on the job that could even be considered light duty amply establish that there was no manifest error in the workers’ compensation judge’s award of vocational rehabilitation services.

McNeese next contends that the workers’ compensation judge erred in awarding penalties and attorney fees. A workers’ compensation judge has great discretion in deciding whether to allow or disallow penalties and attorney fees, and the decision will not be disturbed absent abuse of that discretion. Frank v. City of Lake Charles, 04-820 (La.App. 3 Cir. 11/10/04), 887 So.2d 679. After reviewing the record, we find no abuse of discretion in the award of penalties and attorney fees with regard to Briscoe’s medical and indemnity benefits. However, workers’ compensation statutes providing for penalties and attorney fees are penal in nature and to be strictly construed. Langley v. Petro Star Corp. of La., 01-0198, pp. 3-4 (La.6/29/01), 792 So.2d 721, 723. While we have found that Briscoe’s pleadings were sufficient to encompass a demand for vocational rehabilitation service, they lack the specificity required to support a claim for penalties. It is evident that $2,000.00 of the penalties awarded by the workers’ compensation judge were for McNeese’s failure to provide vocational rehabilitation services. Accordingly, we preverse the award of $2,000.00 in penalties for failure to provide vocational rehabilitation services.

Briscoe answered the appeal seeking attorney fees for work on this appeal. Accordingly, we hereby amend the judgment to award $3,500.00 in attorney fees for this appeal.

DECREE

For the reasons assigned, the judgment of the workers’ compensation judge is reversed insofar as it awards $2,000.00 in penalties for failure to provide vocational rehabilitation services. It is amended to award an additional $3,500.00 in attorney fees for work on this appeal and affirmed in all other respects. All costs are taxed to McNeese. Pursuant to the requirement of La.R.S. 13:5112(A), we set those costs in the. monetary amount of $778.00.

REVERSED IN PART; AND AFFIRMED AS AMENDED IN PART.