author: HIGGINBOTHAM, J.

text:
    Linda Grace BOYD v. John Brent BOYD.
    No. 2010 CA 1369.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 11, 2011.

      ■Phil E. Miley, Mark D. Miley, Baton Rouge, LA, 'for Plaintiff-Appellee, Linda Grace Boyd.
    Peter J. Losavio, Jr., Kent S. DeJean, Baton Rouge, LA, for Defendant-Appellant, John Brent Boyd.
    Before KUHN, PETTIGREW and HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

| gDefendant, the trustee and co-beneficiary of his parents’ living trust, appeals a trial court judgment holding him in contempt and assessing him with a fine for failing to timely furnish an accounting to plaintiff, his sister and co-beneficiary of the trust. Defendant also appeals various reimbursements and disbursements that the trial court ordered to be paid to plaintiff from his attorney’s client trust account. For the following reasons, wé reverse in part and affirm in part.

FACTUAL AND PROCEDURAL HISTORY

Vernon E. Boyd, Sr. and Dorothy Daspit Boyd (collectively referred to as the “set-tlors” or the “parents”) were married and survived by two children, John Brent Boyd (the “defendant”) and Linda Grace Boyd (the “plaintiff’). By an authentic act executed on April 24, 2001, the parents created a revocable trust known as The Vernon E. and Dorothy Daspit Boyd Living Trust (hereafter referred to as the “Parents’ Trust” or the “common trust”). The property conveyed by each settlor was an undivided community interest. According to defendant, the parents’ Parkwood Drive residence in Baton Rouge, which was eventually sold for approximately $104,000.00, was the only asset of the Parents’ Trust. However, plaintiff maintains that the Parents’ Trust also included a Saloman Smith Barney (SSB) account consisting of approximately $75,000.00 worth of stock and mutual fund investments. The record on appeal contains a copy of the trust instrument that was introduced into evidence at the first hearing in this case, but the Istrust instrument unfortunately does not include a list or description (referred to as “Schedule A” in the trust instrument) of the trust property that had been incorporated into and attached to the original trust instrument.

The Parents’ Trust was created as one trust until the death of either settlor, when it automatically divided into two trusts with each trust owning an undivided one-half interest of the assets owned by the original common trust. The term of the Parents’ Trust was the joint lifetimes of the original settlors. Vernon died on April 30, 2001; therefore, pursuant to the specific provisions in the Parents’ Trust, the original common trust automatically became two separate trusts at Vernon’s death. One trust was referred to as the first-to-die trust, the ‘Vernon E. Boyd, Sr. Trust,” which became irrevocable by the terms of Paragraph 2.04 of the Parents’ Trust. The other trust was referred to as the survivor’s trust, the “Dorothy Daspit Boyd Living Trust,” which remained revocable until Dorothy’s death, as specifically provided by the terms of Paragraph 2.04 in the Parents’ Trust.

Vernon and Dorothy were the initial income beneficiaries in the common trust, but when Vernon died, Dorothy succeeded to Vernon’s original undivided income beneficiary interest. Upon Dorothy’s death on June 14, 2007, the Parents’ Trust provided in Paragraph 3.01 that plaintiff and defendant were to succeed to equal separate property interests as the seeond-ary/successor income beneficiaries. Plaintiff and defendant were also designated as the original principal beneficiaries of the Parents’ Trust, with equal interests. Additionally, the Parents’ Trust designated defendant as the original trustee, and plaintiff as the successor trustee.

Thus, when Vernon died on April 30, 2001, just a few days after the Parents’ Trust was created, Dorothy became the income beneficiary for both |4Vernon’s irrevocable first-to-die trust and her own revocable survivor’s trust. As trustee, defendant expended income from both trusts to provide for Dorothy’s living expenses at home and later at the Southside Gardens Assisted Living facility, until Dorothy’s death on June 14, 2007. A dispute between plaintiff and defendant arose over the funds in the trusts and the expenditures made by defendant. Plaintiff complained that defendant provided minimal information to her after she questioned the financial affairs and status of the trusts. Plaintiff filed suit against defendant on November 8, 2007, requesting that defendant be ordered to furnish an accounting pursuant to LSA-R.S. 9:2088, covering the period from Vernon’s death on April 30, 2001, to the current date. The trial court ordered the accounting as requested. in open court on January 14, 2008, and signed the interlocutory judgment on April 1, 2008.

Plaintiff filed a first supplemental and amending petition on January 9, 2009, alleging that defendant had failed and refused to furnish an accounting complying with the trial court’s April 1, 2008 judgment. Plaintiff requested that the trial court hold defendant in contempt of court for breach of his fiduciary duties, that the trial court find sufficient grounds for the removal of defendant as trustee for his intentional withholding of | ¿information requested by a beneficiary, and that the trial court appoint plaintiff as the successor trustee. Plaintiff further requested that defendant be ordered to pay damages, essentially asserting that defendant had not properly accounted for and had inappropriately disbursed or disposed of trust assets without plaintiffs knowledge or consent.

After three separate hearing days, the trial court assigned written reasons on January 29, 2010, and signed a judgment on February 25, 2010, holding defendant in contempt of court for failing to timely furnish an accounting as previously ordered by the court. The trial court fined defendant $500.00 and ordered him to pay an additional $100.00 per day from the date of signing of the judgment for every day that he fáiled to file the appropriate accounting as ordered by the court. Additionally, the trial court ordered defendant to reimburse plaintiff $25,360.64 for inappropriate expenditures, as well as plaintiffs share of rental income. Finally, the trial court ordered defendant’s attorney to disburse one-half of the proceeds from the sale of the settlors’ residence that was previously owned by the common trust, and ordered defendant to either account for $14,000.00 in payments made by plaintiff for the purchase of the settlors’ vehicle or pay one-half of that sum to plaintiff. Defendant filed a suspensive appeal from the trial court’s February 25, 2010 judgment.

ASSIGNMENTS OF ERROR

On appeal, defendant raises seven assignments of error contending that the trial court legally erred in that: (1) plaintiffs action is perempted under LSA-R.S. 9:2334; (2) plaintiff had no right of action for an accounting [ (,on Dorothy’s trust until the time of her death; (3) defendant was not required to reimburse plaintiff for payments made to Dorothy; (4) no consideration was made for distributions made to plaintiff; (5) defendant was' not required to account for or reimburse plaintiff for car payments when the car was not part of the trust; (6) defendant should not have been held in contempt of court or fined for failing to furnish an accounting; and (7) no consideration was made in the reimbursement amount for the trust funds expended for Dorothy’s support.

STANDARD OF REVIEW

It is well settled that 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, 844 (La.1989). In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and,(l) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Stobart v. State, DOTD, 617 So.2d 880, 882 (La.1993). If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal 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. Hulsey v. Sears, Roebuck & Co., 96-2704 (La.App. 1st Cir.12/29/97), 705 So.2d 1173, 1176-1177.

With regard to questions of law, appellate review is simply a review of whether the trial court was legally correct or legally incorrect. In re Mashburn Marital Trust, 04-1678 (La.App. 1st Cir.12/29/05), 924 So.2d 242, 246, unit denied, 06-1034 (La.9/22/06), 937 So.2d 384. On legal |7issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and render judgment on the record. Id. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. When such a prejudicial error of law skews the trial court’s finding as to issues of material fact, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731, 735. If only one of the factual findings is tainted by the application of incorrect principles of law that are prejudicial, the appellate court’s de novo review is limited to the findings so affected. Picou v. Ferrara, 483 So.2d 915, 918-920 (La.1986); Rideau v. State Farm Mut. Auto. Ins. Co., 06-0894 (La.App. 1st Cir.8/29/07), 970 So.2d 564, 571, unit denied, 07-2228 (La.1/11/08), 972 So.2d 1168.

LAW AND DISCUSSION

Time Limitation for Actions against Trustee

In defendant’s first assignment of error, he argues that plaintiffs claims were perempted under LSA-R.S. 9:2234. Thus, defendant asserts that the trial court erred in considering plaintiffs barred action for breach of duty and damages against defendant as trustee of the trusts. We find no merit to this assertion. The two-year and three-year periods of limitation provided for in the controlling statute, LSA-R.S. 9:2234, are peremptive |speriods that are triggered by an accounting rendered and delivered by the trustee. LSA-R.S. 9:2234 A and C. The burden is on the trustee to show when he made an accounting sufficient to trigger the commencement of the time periods provided by LSA-R.S. 9:2234. See Cook v. Cook, 04-0422 (La.App. 4th Cir.11/10/04), 888 So.2d 1061, 1063. However, there is no evidence in the record of any accounting by the trustee (defendant) that would meet the requirements of the Louisiana Trust Code. The trial court [ nspecifically found that defendant never rendered a sufficient accounting of any type to plaintiff or anyone else, including the surviving settlor, Dorothy, before her death. We deduce no manifest error in this finding of fact; our review of the entire record persuades us that a reasonable evidentiary basis exists for that factual determination. Therefore, we conclude that plaintiffs claims against defendant are not perempted and that the trial court did not err in considering plaintiff s action.

Accounting and Contempt

Defendant’s second, fifth, and sixth assignments of error revolve around the accounting previously ordered by the trial court, as well as the trial court’s finding that defendant was in contempt for failing to timely furnish the accounting as ordered. Defendant also contends that the trial court erred when it ordered that plaintiffs payments for the settlors’ car were to be included as a trust.asset in the accounting. After thoroughly reviewing the record, the original trust instrument, and the Louisiana Trust Code, we conclude that the trial court legally erred when it initially ordered defendant to furnish plaintiff an accounting of the Parents’ Trust from April 30, 2001, the date of Vernon’s death, to the current date.

|1nThe Parents’ Trust specifically states in Paragraph 8.04 that the trustee must render accountings to the beneficiaries as required by the Louisiana Trust Code. The Louisiana Trust Code at LSA-R.S. 9:2088 imposes a mandatory duty on the trustee to render annual accounts of the administration of the trust to the beneficiary. If the trust has both income and principal beneficiaries, as in this case, the trustee is obligated to render accounts to all. Edward E. Chase, Jr., Trusts § 14:6, at 280, in 11 Louisiana Civil Law Treatise (2d ed.2009). However, section 2088 A specifically provides that “[i]f the trust is revocable, the trustee has a duty to account to the settlor only.” (Emphasis added.) The rationale for limiting the duty to account in a revocable trust presumably is that the power of revocation effectively renders the settlor the only party at interest in the trust. Chase, supra § 14:6, at 280.

Our research has not revealed any reported cases that have considered a trustee’s duty to account to the settlor only when a revocable trust was involved; thus, this appeal's to be a res nova issue. Defendant asserts that since Dorothy’s survivor trust was revocable until Dorothy’s death on June 14, 2007, he had no duty to account to plaintiff and plaintiff had no right of action against defendant for an accounting. Defendant also insists that Dorothy never questioned or objected to any expenditure from the trust, so he did not furnish an accounting to her as settlor.

I^The trial court’s written reasons and judgment do not reflect that the trial court ever recognized that the Parents’ Trust automatically divided into two trusts at the time of Vernon’s death on April 30, 2001. Likewise, the trial court did not determine or even consider that Vernon’s first-to-die trust was irrevocable and Dorothy’s survivor’s trust was revocable. Instead, the trial court ordered an accounting to plaintiff as a beneficiary on the Parents’ Trust from the time of Vernon’s death to the current date, as if the original common trust was irrevocable at all times after Vernon’s death. We conclude this was legal error on the part of the trial court, because that conclusion ignores the clear and explicit language of the Parents’ Trust. Pursuant to Paragraph 2.05 of the Parents’ Trust, the original common trust “divides into two separate trusts ” at the earlier of Vernon and Dorothy’s deaths. (Emphasis added.) Further, the Parents’ Trust in Paragraph 2.04, clearly provides that at the death of the first-to-die settlor, the first-to-die’s trust becomes irrevocable and the survivor’s trust remains revocable until the death of the surviving spouse when it becomes irrevocable.

In 2001, by Act 2001, No. 594 § 2, the legislature added the sentence at issue to section 2088 A: “if the trust is revocable, the trustee has a duty to account to the settlor only.” LSA-R.S. 9:2088 A. This clear and unambiguous language reveals that defendant had a duty to account to Dorothy only, as settlor of the original common trust, regarding the accounts of the administration of the revocable survivor’s trust. Further, we find that defendant had a duty to account to both plaintiff, as a principal beneficiary, and Dorothy, as an income beneficiary, of the first-to-die irrevocable trust. Louisiana Revised Statutes 9:2088 requires a clear and accurate annual | ^accounting to all principal and income beneficiaries of irrevocable trusts. See Chase, supra § 14:6, at 280.

We find that plaintiff would not have a right of action against defendant for an accounting on the survivor’s trust until that trust became irrevocable at Dorothy’s death on June 14, 2007. Thus, the trial court legally erred when it ordered defendant to furnish a detailed LSA-R.S. 9:2088 accounting to plaintiff on the Parents’ Trust from Vernon’s death to the current date as if it were only one trust. Based upon our de novo interpretation of LSA-R.S. 9:2088 A and the language of the Parents’ Trust, we conclude that plaintiff was entitled to an accounting on Vernon’s first-to-die irrevocable trust from April 30, 2001, to the current date, and on Dorothy’s survivor’s trust once it became irrevocable on June 14, 2007, to the current date.

We are compelled to note, however, that while plaintiff had no right of action for an annual accounting on the survivor’s trust during the time it was revocable, plaintiff did have a right to reasonably request complete and accurate information as to the nature and amount of the trust property in both the first-to-die’s trust and the survivor’s- trust, without regard for the revocability of those trusts. Louisiana Revised Statutes 9:2089 provides: “[a] trustee shall give to a beneficiary upon his request at reasonable times[,] complete and accurate information as to the nature and amount of the trust property, and permit him ... to inspect the subject matter .of the trust, and the accounts, vouchers, and other documents relating to the trust.” The trustee’s 11sduty to furnish information to the beneficiary is mandatory. Holladay v. Fidelity Nat. Bank of Baton Rouge, 312 So.2d 883, 887 (La.App. 1st Cir.1975). Thus, we find no merit to defendant’s contention that since Dorothy (the settlor) never objected to his expenditures from the trusts, that plaintiff had no right to question or receive information about the trusts. Section 2089 states no limitations — both income and principal beneficiaries are entitled to request and receive information from the trustee. Chase,. supra § 14:7,, at 283. Section 2089 does not dictate the form required for the information, but it would be less than what is required for the detailed annual accounting mandated by LSA-R.S. 9:2088. ;

Because the trial court’s contempt ruling dealt with defendant’s failure to furnish the previously-ordered accounting, the trial court never considered whether the information supplied by defendant was a sufficient response to plaintiffs request for information. We conclude this was legal error on the part of the trial court. Plaintiffs original petition requested- that defendant “furnish to her information concerning the financial affairs, creditors, tax returns and expenditures of trust funds but that the defendant has furnished only minimal information concerning the- financial affairs of [t]he [Parents’] Trust.” Plaintiff also alleged that as a beneficiary of the Parents’ Trust, “defendant has an obligation to furnish to her accurate information at reasonable times as to the nature and amount of [t]he [t]rust 114property.” Thus, the issue of whether defendant had provided sufficient information pursuant to plaintiffs request was before the trial court. We find the trial court legally erred by failing to make a ruling on the information issue, and instead looking only to the accounting issue. Our review of the record reveals that the documentation supplied by defendant in response to plaintiffs request for information, while unorganized and provided in a piecemeal fashion, was sufficient to comply with plaintiffs information request under LSA-R.S. 9:2089. We also note that we do not disagree with the trial court’s conclusion that the documentation provided by defendant was insufficient to constitute compliance with the detailed annual account that is required by LSA-R.S. 9:2088. And defendant’s failure to account for the trusts as required by LSA-R.S. 9:2088 is a breach of his fiduciary duty as trustee.

Defendant also argues that the trial court erred in holding him in contempt for his failure to timely furnish the previously-ordered accounting, and in fining him $500.00 plus an additional $100.00 per day until the appropriate accounting is filed. We find no merit to defendant’s argument. A trial court is vested with great discretion in determining whether a party should be held in contempt, and its decision will only be reversed when the appellate court discerns an abuse of that discretion. Rogers v. Dickens, 060898 (La.App. 1st Cir.2/9/07), 959 So.2d 940, 945. While it is true that the [1Btrial court’s ultimate decision to hold a party in contempt of court is subject to review under the abuse of discretion standard, the trial court’s predicate factual determinations are reviewed under the manifest error standard in the case of a civil contempt. Id.

A constructive civil contempt of court includes the “[w]illful disobedience of any lawful judgment, order, mandate, writ, or process of the court.” LSA-C.C.P. art. 224(2). A finding that a person willfully disobeyed a court order in violation of Article 224(2) must be based on a finding that the person violated an order of the court intentionally, knowingly, and purposefully, without justifiable excuse. Lang v. Asten, Inc., 05-1119 (La.1/13/06), 918 So.2d 453, 454 (per curiam). As we have already concluded, our review of the record indicates that defendant complied with plaintiffs request for supplying information regarding the financial affairs and expenditures of the Parents’ Trust, but he fell short of complying with the stringent requirements of annual accountings for the trusts. Although the trial court erred in ordering defendant to account to plaintiff without considering the fact that the Parents’ Trust had divided into two trusts and that defendant did not owe an accounting to plaintiff on the survivor’s trust until Dorothy died on June 14, 2007, we find no abuse of discretion in the trial court’s finding of contempt and the resulting fine for his knowing failure to provide the ordered accounting for Vernon’s first-to-die irrevocable trust as required by statute.

Defendant also asserts one final error with regard to the court-ordered accounting for $14,000.00 in payments made by plaintiff for the purchase of her parents’ vehicle. Defendant argues that as trustee, he is only obligated to account for trust assets, and the car was not a trust asset. Plaintiff testified |1fithat the Parents’ Trust owned the car and that she made payments to the Parents’ Trust in the amount of $500.00 per month from 2001 to 2003. Our review of the record does not reveal any written documentation that the car was ever donated or added as property to the existing Parents’ Trust. And if it was added, there is no evidence that defendant, as trustee, ever accepted the car as additional trust property, as required by LSA-R.S. 9:1932 and 1935.

Furthermore, LSA-R.S. 9:2085 A directs that an “individual trustee shall not directly or indirectly buy or sell property for 4he trust from or to himself or his relative, ... unless the trust instrument provides otherwise, or unless specifically authorized by a court of competent jurisdiction, after a contradictory hearing.” Given the lack of evidence of the settlors’ donation of the car as additional trust property and the prohibition of sales of trust property to relatives of the trustee, we find that the trial court legally erred when it included the car payments of $14,000.00 in the ordered accounting. That portion of the trial court judgment must be reversed.

Trust Reimbursements and Distributions

In defendant’s third, fourth, and seventh assignments of error, he claims the trial court erred in calculating the reimbursements due plaintiff by failing to take into consideration that Dorothy’s living expenses exceeded the income and principal of the trust and that defendant had authority to invade the-principal for the benefit of Dorothy during her lifetime. [ 17Pefendant also argues that previous distributions made to plaintiff should have been considered in the reimbursement calculations.

The trial court was faced with the extremely difficult task of determining the assets and disbursements of the Parents’ Trust without the benefit of annual ac-countings. The Parents’ Trust, in Paragraph 5.01, provided that when the trusts terminate after the close of the trust accounting year in which the surviving spouse’s death occurs, the trustee “must distribute to the principal beneficiary of such trust his or her interest in trust property ... as reflected by the [tjrustee’s books .of account as of the expiration of that accounting year.” Therefore, at the end of 2007 (the year that Dorothy died), the amount that would have been reflected in a proper accounting of the trust property is what should have been, used in calculating the distributions or divisions of the remaining trust property, if any, to plaintiff and defendant. Any distributions for Dorothy’s maintenance and support expenses that were made from the accumulated income and principal of the trust during the six years after Vernon died, were specifically authorized by Article VII of the original trust instrument and should have been considered if properly accounted for. Paragraphs 7.01 and 7.02 of the Parents’ Trust gave the trustee the sole discretion to make income distributions and invade the principal for the benefit of Dorothy. The Parents’ Trust, in Paragraph 8.03, also allowed the trustee to receive reasonable compensation for his services and to recover reasonable expenses and costs.

At the trial on the merits, the trial court heard conflicting testimony about the costs associated with Dorothy’s support and maintenance prior to her death in 2007, as well as compensation for defendant’s services as |1strustee. Additionally, the trial court heard conflicting testimony about some trust expenditures made by defendant for his own personal benefit. It is apparent from the record that the trial court carefully weighed the evidence and considered a large volume of disorganized documentation before concluding that there had been a total of $47,021.30 in inappropriate expenditures from the trust property. The trial court also determined that plaintiff was entitled to $1,850.00 in rental income that defendant had determined to be plaintiffs share. Thus, the trial court found that plaintiff was entitled to a total reimbursement from defendant in the amount of $25,360.64, which represented plaintiffs one-half interest.

After a thorough review’ of the evidence and testimony in its entirety, we find that a reasonable factual basis exists for the trial court’s factual findings. Thus, we find no manifest error in these determinations or in the trial court’s order requiring that plaintiffs reimbursement be disbursed from defendant attorney’s client trust account. Likewise, we find no manifest error in the trial court’s determination that plaintiff was entitled to $52,231.81 for her one-half interest in the net proceeds from the sale of the settlors’ residence, to be disbursed from defendant attorney’s client trust account. Therefore, in the absence of manifest error on such findings of fact, we must affirm the trial court’s judgment awarding these specific reimbursements and distributions to plaintiff. See Curtis v. Breaux, 458 So.2d 582, 588 (La. App. 3d Cm.1984).

^CONCLUSION

For the reasons set forth, the judgment of the trial court is reversed in part and affirmed in part. We hereby reverse the portion of the trial court’s judgment ordering defendant to account for the $14,000.00 paid by plaintiff for her parents’ car. We affirm that portion of the trial court’s judgment finding defendant' in contempt of court for his failure to timely furnish an accounting in accordance with LSA-R.S. 9:2088. We also affirm the remainder of the trial court’s judgment ordering that plaintiff be reimbursed a total of $25,360.64 for defendant’s inappropriate expenditures and for plaintiffs share of rental income, as well as the trial court’s order that $52,231.81 be disbursed from defendant attorney’s client trust account for plaintiffs one-half share of the net proceeds from the sale of the settlors’ residence that was owned by the trusts. All costs of this appeal are assessed equally to plaintiff and defendant.

REVERSED IN PART; AFFIRMED IN PART.

      . A third child, Vernon E. Boyd, Jr., predeceased his parents and had no descendants.

      . The parties stipulated that the net proceeds from the sale of the house were deposited into defendant's attorney's client trust account.

      . A judgment that does not determine the merits but only preliminary matters is an interlocutory judgment. LSA-C.C.P. art. 1841. We note that defendant did not appeal or seek supervisory review of this interlocutory ruling. Although interlocutory judgments are generally non-appealable, this court has held that in appropriate cases, when an unrestricted appeal is taken from a final judgment on the merits, the appellant is entitled to seek review of all adverse interlocutory judgments prejudicial to him, in addition to the review of the final judgment. Dean v. Griffin Crane & Steel, Inc., 05-1226 (La.App. 1st Cir.5/5/06), 935 So.2d 186, 189 n. 3, writ denied, 06-1334 (La.9/22/06), 937 So.2d 387. See also Suazo v. Suazo, 10-0111 (La.App. 1st Cir.6/11/10), 39 So.3d 830, 832. The issue of contempt in the final judgment on the merits is closely related and connected to the accounting issue, which was the subject of the interlocutory ruling. Therefore, it is clearly appropriate, as well as necessary for us to review in this appeal the trial court’s initial interlocutory ruling where defendant was ordered to furnish an accounting.

      . Testimony was heard on March 2, 2009, and June 1, 2009, with closing arguments made on September 21, 2009.

      . Louisiana Revised Statutes 9:2234 provides in pertinent part:
      A. An action for damages by a beneficiary against a trustee for any act, omission, or breach of duty shall be brought within two years of the date that the trustee renders, by actual delivery or mail to the beneficiary, ... an accounting for the accounting period in which the alleged act, omission, or breach of duty arising out of the matters disclosed therein occurred. However, such actions shall in all events ..., be filed within three years of the date that the trustee renders an accounting for the accounting period in which the alleged act, omission, or breach of duty occurred....
      B. Any action by a beneficiary against a trustee other than those described on Subsection A of this Section is prescribed by two years beginning from the date that the trustee renders his final account to the beneficiary.
      C. The provisions of this Section are remedial and apply to all causes of action for damages without regard to the date when the alleged act, omission, or breach of duty occurred. The two-year and three-year periods of limitation provided for in this Section are peremptive periods ... and ... may not be renounced, interrupted, or suspended.
      D. Notwithstanding any other provision of law, all actions brought in the state against any trustee, the prescriptive and peremptive period shall be governed exclusively by this Section.
      (Emphasis added.)

      . Louisiana Revised Statutes 9:2088 governs the accounting duties of the trustee, providing as follows:
      A.A trustee is under a duty to a beneficiary to keep and render clear and accurate accounts of the administration of the trust. If the trust is revocable, the trustee has a duty to account to the settlor only.
      B. A trustee shall render to,a beneficiary or his legal representative at least once a year a clear and accurate account covering his administration for the preceding year. His first annual account shall relate to the calendar year during which he became responsible for the trust property, or, at his option, the first accounting period of not more than twelve months and shall be rendered within ninety days after the expiration of that calendar year or accounting period. Each annual account shall show in detail all receipts and disbursements of cash and all receipts and deliveries of other trust property during the year, and shall set forth a list of all items of trust property at the end of the year.
      C. A trustee upon the termination, revocation, or rescission of the trust, or upon his resignation or removal, shall render to a beneficiary or his legal representative his final account covering the period elapséd since his most recent annual account ..., and setting forth the same information required for annual accounts.

      E.A trustee shall not be under a duty, to file his accounts with the court unless he is expressly required to do so by the instrument or by the proper court.
      (Emphasis added.)

      . We note that defendant did not file a peremptory exception raising the objection of no right of action in the trial court. However, an appellate court may notice the existence or nonexistence of a right of action on its own motion. LSA-C.C.P. art. 927. Therefore, we will consider the issue. Whether plaintiff has a right of action is a question of law, which we review de novo on appeal. Five N Company, L.L.C. v. Stewart, 02-0181 (La.App. 1st Cir.7/2/03), 850 So.2d 51, 58. We must determine whether plaintiff has an interest in judicially enforcing the right assessed. Id.

      . The record does not reveal that Dorothy ever requested an accounting on either trust pursuant to LSA-R.S. 9:2088, but regardless of any request, the annual accounting was still a mandatory duty owed by defendant as the trustee of the trusts. See Mashburn Marital Trust, 924 So.2d at 246-247.

      . Louisiana Revised Statutes 9:2089 does not authorize the settlor to dispense with the trustee's duty to furnish information requested by a beneficiary. Chase, supra § 14:7, at 285.

      . The record contains copies of cancelled checks, copies of bank account statements for trust checking accounts, a copy of a mortgage indebtedness on the settlors' Parkwood Drive residence by the Parents’ Trust, and copies of activity/balance statements for the SSB accounts.

      . We make this determination based upon the fact that the trial court found sufficient information in the documentation to provide a ruling on the final disbursements and reimbursements of the trust property.

      .The trial court apparently did not find defendant's breach of duty to be sufficient cause to remove defendant as trustee under LSA-R.S. 9:1789, because the trial court's judgment is silent as to the trustee removal issue. It is well settled that silence in a judgment as to any issue litigated is construed as a rejection of that issue. Junot v. Morgan, 01-0237 (La.App. 1st Cir.2/20/02), 818 So.2d 152, 156. The denial of plaintiffs request to have defendant removed as trustee is not at issue in this appeal.

      . Paragraph 1.01 of the Parents’ Trust instrument allowed for property to be added by the settlors or third persons. The Louisiana Trust Code section 1932 states that an "addition of property to an existing trust must be made and accepted in the form required for such a donation free of trust.”

      . "Relative” for purposes of LSA-R.S. 9:2085 means "a spouse, ascendant, descendant, brother, or sister.” Chase, supra § 14:3, at 270.

      . Paragraphs 3.01 and 3.02 of the Parents' Trust provide that plaintiff and defendant are equal successor income beneficiaries and equal principal beneficiaries.


source: Caselaw Access Project

author: HUGHES, J.

license: Public Domain

text:
    Mickel James HINDS v. GLOBAL INTERNATIONAL MARINE, INC.
    No. 2010 CA 1452.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 11, 2011.

      George P. Vourvoulias, III, New Orleans, LA, Dennis M. O’Bryan, Birmingham, MI, for Plaintiff/Appellant, Mickel James Hinds.
    Randolph J. Waits, Matthew F. Popp, New Orleans, LA, for Defendant/Appellee, Global International Marine, Inc.
    Before PARRO, GUIDRY, and HUGHES, JJ.
   HUGHES, J.

|aThis is an appeal of a judgment dismissing plaintiffs/appellant’s claims as abandoned pursuant to LSA-C.C.P. art. 561. For the reasons that follow, we reverse the dismissal of the action and remand this matter to the district court for further proceedings.

FACTS AND PROCEDURAL HISTORY

Mickel James Hinds filed a petition for damages on May 28, 2004 alleging that he severely injured his neck, shoulder, and arm on June 3, 2001 while he was employed as a Jones Act seaman aboard the vessel “Statia Trader”, which was owned and/or operated by the defendant, Global International Marine, Inc. (GIM). GIM responded on July 8, 2004 by filing the peremptory exception of prescription and alternatively, a motion to dismiss the action pursuant to LSA-C.C.P. art. 123(B). The exception and motion were originally set for hearing on August 20, 2004, but on August 11, 2004 plaintiff filed an unopposed motion to continue the hearing, requesting that the matter be “continued and reset for a date and time convenient to this court.” (Emphasis added). Thereafter, the hearing on the exception and motion was reset to October 22, 2004. On October 18, 2004 plaintiff filed a second unopposed motion to continue, requesting that the matter be “continued and reset for a date and time convenient to this court.” (Emphasis added). The motion remained pending with the court until May-14, 2007, when the order was marked “MOOT,” returned unsigned to the Clerk of Court, and filed on May 17, 2007.

| ¡¡Prior to the filing in the record of the “MOOT” order on May 17, 2007, plaintiff filed a notice of deposition on January 31, 2006, setting the deposition dates of Patricia Martinez and Dane Romano for February 1, 2006.

On October 22, 2008 plaintiff filed a motion to enroll new counsel. On February 9, 2009 plaintiff filed an ex parte motion for admission requesting that Mr. Dennis M. O’Bryan, a Michigan attorney not licensed in Louisiana, be allowed to appear pro hae vice on his behalf.

On June 3, 2009 plaintiff filed a “Motion and Order to Reset Global International Marine, Inc’s Peremptory Exception of Prescription or, in the alternative, Motion to Dismiss,” asking the court to reset GIM’s exception of prescription and motion to dismiss for hearing. In response, GIM filed a motion to have the action deemed abandoned for plaintiffs failure to take any step in its prosecution for more than three years. A hearing was held on July 31, 2009 and the trial court dismissed the suit as abandoned. This appeal followed.

LAW AND ANALYSIS

Whether a step in the prosecution of a case has been taken in the trial court for a period of three years is a question of fact subject to a manifest error analysis on appeal. Lyons v. Dohman, 2007-0053, p. 4 (La.App. 3 Cir. 5/30/07), 958 So.2d 771, 774 (citing Bias v. Vincent, 2002-642, p. 5 (La.App. 3 Cir. 12/11/02), 832 So.2d 1153, 1156-57, writ denied, 2003-0112 (La.3/21/03), 840 So.2d 542). On the other hand, whether a particular act, if proven, precludes abandonment is a question of law that we review by simply determining whether the trial court’s interpretative decision is correct. Id (citing Jackson v. BASF Corporation, 2004-2777, p. 3 (La.App. 1 Cir. 11/4/05), 927 So.2d 412, 415, writ denied, 2005-2444 (La.3/24/06), 925 So.2d 1231, and Olavarrieta v. St. Pierre, 2004-1566, p. 3 (La.App. 4 Cir. 5/11/05), 902 So.2d 566, 568, writ denied, 2005-1557 (La.12/16/05), 917 So.2d 1118).

^Abandonment is both historically and theoretically a form of liberative prescription that exists independent from the prescription that governs the underlying substantive claim. Clark v. State Farm Mutual Automobile Insurance Company, 2000-3010, p. 11 (La.5/15/01), 785 So.2d 779, 787. The policy underlying Article 561 is the prevention of protracted litigation that is filed for purposes of harassment or without a serious' intent to hasten the claim to judgment. See Chevron Oil Company v. Traigle, 436 So.2d 530, 532 (La.1983).

Abandonment is not a punitive measure; it is designed to discourage frivolous lawsuits by preventing plaintiffs from letting them linger indefinitely. Benjamin-Jenkins v. Lawson, 2000-0958, p. 3 (La.App. 4 Cir. 3/7/01), 781 So.2d 893, 895, unit denied, 2001-1546 (La.9/14/01), 796 So.2d 681.

Dismissal of a lawsuit is the' harshest of remedies. The law favors and justice requires that an action be maintained whenever possible so that the aggrieved party has his day in court. Any action or step taken in a case to move the case toward judgment should be considered. Dismissal of those cases in -which the plaintiff has clearly demonstrated before the court during the prescribed period that he does not intend to abandon his lawsuit is not warranted. Breaux v. Auto Zone, Inc., 2000-1534, p. 3 (La.App. 1 Cir. 12/15/00), 787 So.2d 322, 324, writ denied, 2001-0172 (La.3/16/01), 787 So.2d 316.

Louisiana Code of Civil Procedure article 561 governs abandonment and currently provides, in pertinent part:

A.(1) An action, except as provided in Subparagraph (2) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years
(3) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall 1 senter a formal order of dismissal as of the date of its abandonment. The sheriff shall serve the order in the manner provided in Article 1314, and shall execute a. return pursuant to Article 1292.
B.Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action. -

To prevent abandonment, LSA-C.C.P. art. 561 imposes three requirements on a party. First, a party must •take some “step” towards prosecution of the lawsuit. A “step” is either a formal action; before the court that is intended to hasten the suit towards judgment or the taking of formal discovery. Second, the “step” must be taken in the court where the suit is pending and, except for formal discovery, must appear in the suit record. Third, the “step” must be taken within the legislatively prescribed time period. Jackson v. BASF Corporation, 2004-2777 at pp. 4-5, 927 So.2d at 416. See also Breaux v. Auto Zone, Inc., 2000-1534 at p. 3, 787 So.2d at 324.

Plaintiffs October 18, 2004 motion to continue and request that the matter be reset, with accompanying order, was a “step” in the prosecution of the suit. Barton v. Barton, 2006-2032 (La.App. 1 Cir. 8/8/07), 965 So.2d 939. While the February 1, 2006 deposition was also a “step” intended to hasten the matter to judgment, more than three years passed between February 1, 2006 and June 3, 2009 (the date of plaintiffs next motion to reset) without any “steps” being taken. As such, it would appear that the action had been abandoned. However, we are concerned with the fact that plaintiffs request to reset the hearing remained | (¡pending before the court unanswered until May 14, 2007. The issue then is whether plaintiff is to be penalized for that period of time.

The policy underlying Article 561, as stated above, is to prevent protracted litigation that is filed for the purposes of harassment or without any serious intent to hasten the claim to judgment. Moreover, the jurisprudence dictates that, we construe the Article liberally in order to maintain an action whenever possible. Reviewing the'record before us, we find no indication that the plaintiff filed this suit with the intent to harass or without any serious intent to bring this claim to judgment. Mr. Hinds made several requests that the defendant’s exceptions be reset for hearing. While the court considered his second requ'est, plaintiff continued conducting discovery and enrolled new counsel, both actions that are inconsistent with the intent to abandon the claim. When the court in effect denied plaintiffs motion filed on October 18, 2004 by declaring it “moot”, the step initiated by plaintiff was completed. Therefore, in this case the abandonment period began to run anew on May 15, 2007 the day after the court denied plaintiffs motion. See LSA-C.C.P. art. 5059. Because the plaintiff took another “step” in the prosecution of his action on June 3, 2009, within three years of the court’s May 14, 2007 action, this matter was not abandoned at the time of GIM’s motion to dismiss.

CONCLUSION

For the reasons assigned herein, the judgment of the trial court is reversed and this matter is remanded to the trial court for further proceedings. All costs of this appeal are assessed to defendant/appellee, Global International Marine, Inc.

REVERSED AND REMANDED.

GUIDRY, J., concurs in the result.

      . Louisiana Code of Civil Procedure article 123(8) states:
      Upon the contradictory motion of any defendant in a civil case filed in a district court of this state in which a claim or cause of action is predicated upon acts or omissions originating outside the territorial boundaries of this state, when it is shown that there exists a more appropriate forum outside of this state, taking into account the location where the acts giving rise to the action occurred, the convenience of the parties and witnesses, and the interest of justice, the court may dismiss the suit without prejudice; however, no suit in which the plaintiff is domiciled in this state, and which is brought in a court which is otherwise a court of competent jurisdiction and proper venue, shall be dismissed pursuant to this Article.

      . The only other categories of causes outside the record that satisfy the jurisprudential exceptions to the abandonment rule are: (1) a plaintiff-oriented exception, based upon contra non'valentem, that applies when failure to prosecute is caused by circumstances beyond the plaintiff's control; and (2) a defense-oriented exception based upon acknowledgement that applies when the .defendant waives his right to assert abandonment by taking actions inconsistent with intent to treat the case as abandoned. Jackson v. BASF Corporation, 2004-2777 at p. 5, 927 So.2d at 416.

      . It is undisputed that the filings associated with enrolling new counsel are not "steps” in the prosecution of a suit so as to interrupt the running of abandonment.


author: McClendon, j.

text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY as Trustee for the Holders of Ixis Real Estate Capital Trust 2005-HE3 Mortgage Pass-Through Certificates, Series 2005-HE3 v. Shirley M. THOMAS.
    No. 2010 CA 1453.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 11, 2011.

      Charles Heck, Jr., Monroe, Louisiana, for Plaintiff/Appellee, Deutsche Bank National Trust Co.
    Alfreda Tillman Bester, Baton Rouge, Louisiana, for Defendant/Appellant, Shirley M. Thomas.
    Before: WHIPPLE, McDONALD and McClendon, jj.
   McClendon, j.

|2The defendant appeals a trial court judgment that granted the plaintiffs motion for summary judgment and denied her exception of prematurity, denied her motion for summary judgment, and dismissed her reconventional demand. For the reasons that follow, we vacate the judgment and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

This matter began as an executory proceeding filed by the plaintiff, Deutsche Bank National Trust Company as Trustee for the Holders of Ixis Real Estate Capital Trust 2005-HE3 Mortgage Pass-Through Certificates, Series 2005-HE3 (Deutsche Bank), against the defendant, Shirley M. Thomas, on April 30, 2007. The action was subsequently converted to an ordinary proceeding, and on October 10, 2007, Ms. Thomas filed an Exception of Prematurity and Reconventional Demand specifically denying that she was in default of her mortgage agreement and asserting that Deutsche Bank had created an “artificial default” in violation of the Fair Debt Collection Practices Act and Louisiana law. No order was attached to the exception requesting that it be set for hearing.

On September 8, 2009, Deutsche Bank filed a motion for summary judgment as to its main demand and the reconventional demand of Ms. Thomas. On January 22, 2010, Ms. Thomas filed an Exception of Prematurity and Cross Motion for Summary Judgment.

A hearing was held on February 1, 2010, on Deutsche Bank’s motion for summary judgment. The trial court granted summary judgment in favor of Deutsche Bank and against Ms. Thomas in the principal amount of $48,465.29 plus interest, fees, attorney fees, and costs, further recognizing the mortgage securing the debt and declaring it enforceable. The trial court also denied Ms. Thomas’s exception of prematurity and cross-motion for summary judgment. Judgment was signed on March 9, 2010, and Ms. Thomas appealed.

IsDISCUSSION

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Bozarth v. State, LSU Medical Center/Chabert Medical Center, 09-1893, p. 9 (La.App. 1 Cir. 2/12/10), 85 So.3d 316, 323. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966 B; Bozarth, 09-1393 at pp. 9-10, 35 So.3d at 323.

Ms. Thomas initially contends that the trial court erred in granting summary judgment in favor of Deutsche Bank, arguing that the motion was premature. She asserts that she filed an exception of prematurity prior to an answer and that it had not been ruled upon when Deutsche Bank filed its motion for summary judgment. Therefore, according to Ms. Thomas, Deutsche Bank’s motion was not properly before the court.

Article 921 of the Louisiana Code of Civil Procedure states that “[a]n exception is a means of defense ... used by the defendant.” Leger v. Weinstein, 03-1497, pp. 9-10 (La.App. 3 Cir. 10/27/04), 885 So.2d 701, 707, writ denied, 04-2903 (La.2/4/05), 893 So.2d 873, and writ denied, 04-2899 (La.2/4/05), 893 So.2d 882. The dilatory exception, which includes the objection of prematurity, “retards the progress of the action,” but does not tend “to defeat the action.” See LSA-C.C.P. arts. 923 and 926. It “shall be pleaded prior to or in the answer.” LSA-C.C.P. art. 928. Further, the dilatory exception “when pleaded before or in the answer shall be tried and decided in advance of the trial of the case.” LSA-C.C.P. art. 929. Louisiana Code of Civil Procedure Article 966 also |4provides that a motion for summary judgment filed by the plaintiff “may be made at any time after the answer has been filed.”

The record shows that Ms. Thomas filed her exception of prematurity prior to filing an answer. Deutsche Bank, while conceding that no “formal” answer was filed, makes the argument that because Ms. Thomas specifically denied the default of the loan and raised affirmative defenses in her reconventional demand, she answered the petition. However, LSA-C.C.P. art. 1004 provides that “[t]he answer shall admit or deny the allegations of fact contained in each paragraph of the petition.” See also LSA-C.C.P. art. 1003. Such was not the case here. Accordingly, we cannot equate Ms. Thomas’s reconventional demand with the answer required by LSA-C.C.P. arts. 1003 and 1004. The language of LSA-C.C.P. art. 966 is clear. Deutsche Bank could not properly move for summary judgment until after an answer was filed. See Hill v. Lopez, 05-0182, p. 3 (La.App. 1 Cir. 2/22/06), 929 So.2d 80, 83; Leger, 03-1497 at p. 10, 885 So.2d at 707.

With regard to the argument that Ms. Thomas waived the exception of prematurity because she did not include an order requesting that it be set for hearing, we recognize that at the February 1, 2010 hearing, Ms. Thomas, through counsel, brought to the court’s attention that the exception of prematurity filed on October 10, 2007, had not been ruled upon. Accordingly, we conclude that the exception was not waived and that Deutsche Bank’s motion for summary judgment was premature.

Ms. Thomas also argues that the granting of Deutsche Bank’s motion for summary judgment and dismissal of her recon-ventional demand was improper on the merits because there were genuine issues of material fact in dispute. |fiHaving found that Deutsche Bank’s motion for summary judgment was premature requiring that the judgment be vacated, we likewise find that the trial court erred in dismissing Ms. Thomas’s reconventional demand pursuant to its granting of Deutsche Bank’s motion for summary judgment.

CONCLUSION

For these reasons, the judgment of the trial court is vacated, and this matter is remanded to the trial court for further proceedings. The costs of this appeal shall be assessed to Deutsche Bank.

JUDGMENT VACATED AND CASE REMANDED.

      . Although there was no order attached to Ms. Thomas's exception of prematurity and cross-motion for summary judgment asking that they be set for hearing, the matters were argued and ruled on at the February 1, 2010 hearing.

      . Article 921 provides:
      An exception is a means of defense, other than a denial or avoidance of the demand, used by the defendant, whether in the principal or an incidental action, to retard, dismiss, or defeat the demand brought against him.

      . Article 966 A(l) provides:
      The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff's motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.

      . For the same reasons, we note that Ms. Thomas’s cross-motion for summary judgment was also premature.


author: GAIDRY, J.

text:
    Terrill K. STEINER v. Walter REED, in his Official Capacity as District Attorney of the 22nd Judicial District and Louisiana Department of Public Safety and Corrections.
    No. 2010 CA 1465.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 11, 2011.

      Sam J. Collett, Jr., Bailey D. Morse, Covington, Louisiana, for Plaintiff/Appellant, Terril Z. Steiner.
    Harrietta J. Bridges, Baton Rouge, Louisiana, for Defendant/Appellee, Department of Public Safety and Corrections.
    Before CARTER, C.J., GAIDRY and WELCH, JJ.
   GAIDRY, J.

|2This is an appeal of a judgment sustaining a peremptory exception of no cause of action and dismissing the plaintiffs petition for declaratory judgment. For the sound reasons assigned by the trial court and for the following reasons, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

On July 10, 1991, Terril K. Steiner was convicted in St. Tammany Parish of three counts of violating La. R.S. 14:81 (indecent behavior with a juvenile) and one count of violating La. R.S. 14:92(7) (contributing to the delinquency of juveniles). He was sentenced to serve two years in the parish jail on each count, the sentences to be served concurrently. He was never in the custody of the Louisiana Department of Public Safety and Corrections during his incarceration or sentence and was released in August 1992.

The Louisiana Megan’s Law, La. R.S. 15:540, et seq., took effect on June 18, 1992. Louisiana authorities subsequently did not require Mr. Steiner to register as a sex offender under that law, and he has not in fact so registered since the effective date of that law.

Mr. Steiner later resided in the state of Florida. In 2005, Florida authorities contacted him and required him to register as a sex offender under Florida law, based upon his Louisiana convictions. Later that year, Mr. Steiner moved to the state of Mississippi, his current domicile. Mississippi authorities learned of his Florida sex offender registration and [3required him to register as a sex offender in that state, again based upon his Louisiana convictions.

On December 17, 2008, Mr. Steiner filed the present action against the Louisiana Department of Public Safety and Corrections (the State) seeking a judicial declaration that he is not required to register as a sex offender as required by La. R.S. 15:540, et seq. Mr. Steiner has alleged that the requirement of his registration as a sex offender in Mississippi is predicated upon his status as a “sex offender” or “child predator” under the cited Louisiana law. He further alleges that he has not been required to register in Louisiana and that he in fact is not required to so register. Specifically, he alleges that because his offenses were committed prior to the effective date of the Louisiana Megan’s Law and because he was never in the custody of the State, they do not fall within the statutory definition of “sex offense” under La. R.S. 15:541(24) from the initial effective date of the statute to the present. Additionally, he alleges that none of his offenses fall within the statutory definition of “sexual offense against a victim who is a minor” under La. R.S. 15:541(25), or any other provision of law requiring registration.

The State filed an answer to the petition in the form of a general denial. Trial on the merits was scheduled for August 5, 2009. On July 28, ]42009, the State filed a peremptory exception of no cause of action. The trial court deferred the hearing of the State’s exception to the trial of the case, pursuant to La. C.C.P. art. 929(B).

At the trial on August 5, 2009, the parties stipulated that if Mr. Steiner were called to testify, he would testify that the facts set forth in his verified petition were true. Copies, of two minute entries relating to Mr. Steiner’s 1991 convictions, attached to his petition, were also introduced in evidence. The trial court directed the parties to submit post-trial memoranda and took the matter under advisement for decision.

On October 30, 2009, the trial court ruled that the exception would be sustained and issued written reasons for judgment. In its reasons for judgment, the trial court concluded:

Registration for Mississippi residents is governed by the laws of that State. A finding by this Court that Mr. Steiner is not required to register in Louisiana would not be determinative of whether Mr. Steiner would be required to register under the procedures and laws of the State of Mississippi. Thus, the rendering of a declaratory judgment as to Mr. Steiner’s status under Louisiana law would not end the controversy giving rise to this proceeding.

The trial court’s judgment sustaining the peremptory exception of no cause of action and dismissing the action was signed on November 24, 2009.

Mr. Steiner now appeals.

STANDARD OF REVIEW

A trial court’s judgment sustaining the peremptory exception of no cause of action is subject to de novo review by an appellate court, employing the same principles applicable to the trial court’s determination of the exception. Block v. Bernard, Cassisa, Elliott & Davis, 04-1893, p. 8 (La.App. 1st Cir.11/4/05), 927 So.2d 339, 344. The purpose of the peremptory exception of no cause of action is to determine the sufficiency in law of the 1 ^petition, in terms of whether the law extends a remedy to anyone under the petition’s factual allegations. Id. For purposes of determining the issues raised by a peremptory exception of no cause of action, the well-pleaded facts in the petition must be accepted as true, and the court must determine if the law affords the plaintiff a remedy under those facts. Id., 04-1893 at- p. 9, 927 So.2d at 345. Any doubts are resolved in favor of the sufficiency of the petition. Id.

DISCUSSION

A person “whose rights, status, or other legal relations are affected by a statute” may seek the determination of “any question of construction or validity arising under the ... statute ... and obtain a declaration of rights, status, or other legal relations thereunder.” La. C.C.P. art. 1872. Declaratory judgment may be rendered “whether or not further relief is or could be claimed.” La. C.C.P. art. 1871. Nevertheless, a declaratory judgment has the force and effect of a final judgment or decree and may serve as the basis for a petition seeking further relief. See La. C.C.P. arts. 1871,1878.

However, the court may refuse to render a declaratory judgment or decree where such judgment or decree, if rendered, will not terminate the uncertainty or controversy giving rise to the proceeding. La. C.C.P. art. 1876. Our jurisprudence has limited the availability of declaratory judgment by holding that “courts will only act in cases of a present, justicia-ble controversy and will not render merely advisory opinions.” Church Point Wholesale Beverage Co., Inc. v. Tarver, 614 So.2d 697, 701 (La.1993).

A justiciable controversy is a real and substantial controversy admitting of specific relief through a decree of conclusive character. Am. Waste & Pollution Control Co. v. St. Martin Parish Police Jury, 627 So.2d 158, 161 (La.1993). It has been generally defined as a dispute between “adverse parties with opposing claims ripe for judicial determination,” involving “specific adversarial questions asserted by interested parties based on existing facts.” Prator v. Caddo Parish, 04-0794, pp. 5-6 (La.12/1/04), 888 So.2d 812, 816.

In the context of declaratory judgment, a justiciable controversy must involve uncertain or disputed rights in an immediate and genuine situation, and must be a substantial and actual dispute as to the legal relations of parties having real, adverse interests. Wooley v. State Farm Fire & Cas. Ins. Co., 05-1490, p. 5 (La.App. 1st Cir.2/10/06), 928 So.2d 618, 622. Such a justiciable controversy must be distinguished from one that is merely hypothetical or abstract, or one presenting an issue that is academic, theoretical, or based on a contingency that may or may not arise. See Am. Waste & Pollution Control Co., 627 So.2d at 161-62.

When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. La. C.C.P. art. 1880. Mr. Steiner’s avowed purpose in bringing this action is to obtain persuasive legal authority that may influence the determination of the interest of the state of Mississippi in his registration as a purported sex offender. The state of Mississippi is not and cannot be made a party to the present action, and any declaratory judgment or decree on the legal issue presented would not be conclusive or binding on Mississippi courts’ interpretation of its own laws applicable to its own citizens, even to the extent that such laws may rely upon interpretation of Louisiana law for limited purposes.

17There is nothing in the petition or the evidence at trial suggesting that the state of Louisiana has ever or will ever seek to compel Mr. Steiner’s registration as a sex offender or prosecute him for failure to register. Accepting the existing facts as framed by Mr. Steiner, the present dispute is based upon an uncertain (and evidently unlikely) contingency and is thus neither immediate nor actual. The parties do not have real, adverse interests ripe for judicial determination, and any judgment or decree rendered would not have conclusive effect upon the actual controversy affecting Mr. Steiner’s rights and status. As such, any judgment or decree upon the legal issue would amount to a mere advisory opinion.

As correctly urged by the State, the only justiciable controversy posed under the facts of this case is that between Mr. Steiner and the state of Mississippi, not the state of Louisiana. We appreciate his apparent dilemma in resolving the legal conundrum supposedly posed by Mississippi law. But Mr. Steiner’s proper recourse is to seek declaratory relief in the courts of that state, which should be relied upon to apply appropriate legal principles in the interpretation of Louisiana law, if Louisiana law indeed determines the issue of registration in Mississippi. See, e.g., Stallworth v. Miss. Dep’t of Pub. Safety, 986 So.2d 259 (Miss.2008).

Because there is no justiciable controversy presented under the facts as alleged and shown at trial, Mr. Steiner has failed to state a cause of action, and the trial court also lacked subject matter jurisdiction. Because our subject matter jurisdiction is derivative of that of the trial court, we also lack jurisdiction to determine the merits of Mr. Steiner’s claims.

The judgment of the trial court is affirmed. All costs of this appeal are assessed to the plaintiff-appellant, Terril K. Steiner.

AFFIRMED.

        .See Acts 1992, No. 388, effective June 18, 1992. The popular name of this law mirrors that of similar laws enacted throughout the country in the wake of a nationally-publicized murder. Megan Kanka was a seven-year-old New Jersey girl who was raped and murdered in 1994 by an adult neighbor who had previously been convicted of sex offenses against children. The crime served as the impetus for the enactment of laws nationwide for mandatory registration of sex offenders. Louisiana’s law has since been amended several times and revised to comport with minimum standards for state programs and neighborhood notification of sex offender residence contained in the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program Act, 42 U.S.C. § 14071 and with the federal guidelines of the Adam Walsh Child Protection and Safety Act of 2006, 42 U.S.C. § 16901, et seq.

      . The district attorney of the 22nd Judicial District Court was also named as a defendant but was subsequently dismissed by stipulation of the parties.

      . See Miss.Code Ann. § 45-33-21, et seq., particularly § 45-33-23(a), defining "conviction” and "conviction of similar offenses” and § 45-33-23(g), defining "sex offense.” Included within the latter definition of “sex offense” are "[a]ny other offense resulting in a conviction in another jurisdiction which, if committed in this state, would be deemed to be such a crime without regard to its designation elsewhere,” (Miss.Code Ann. § 45-33-23(g)(xvi)), and "[a]ny offense resulting in a conviction in another jurisdiction for which registration is required in the jurisdiction where the conviction was had” (§ 45-33-23(g)(xvii)).

      . The statute, originally enacted as La. R.S. 15:542(E), provides that any described offense committed prior to its original effective date of June 18, 1992, constitutes a "sex offense” if the person convicted "is under the custody of the Department of Public Safety and corrections on or after June 18, 1992.”


author: COOKS, Judge.

text:
    James Randall MAXWELL v. Jennifer STANLEY (Lavigne).
    No. 10-1049.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 16, 2011.

      Mark A. Holden, Baton Rouge, LA, for Appellant, Jennifer Stanley (Lavigne).
    Jack H. McLemore, Jr., Vidalia, LA, for Appellee, Jason Randall Maxwell.
    Court composed of SYLVIA R. COOKS, BILLY H. EZELL, and SHANNON J. GREMILLION, Judges.
   COOKS, Judge.

|,In this child custody case, the mother appeals the trial court’s judgment which modified the stipulated custodial agreement to name the father as the primary domiciliary parent. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Jason Randall Maxwell and Jennifer Stanley Lavigne are the biological parents of the minor child, Brooklyn Claire Maxwell, who was born on March 1, 2006. The two were never married but were living together in Vidalia, Louisiana at the time of birth. In May of 2007, Jennifer moved into her mother’s home in Natchez, Mississippi.

In March of 2009, Jennifer married Michael Lavigne. In July of 2009, she moved to Prairieville, Louisiana where Michael resided.

On June 30, 2006, both Jason and Jennifer filed a “Petition for Determination of Custody, Child Support, Visitation, and Incidental Matters.” The court signed an Order providing the parties had joint custody, with Jennifer designated as the domiciliary parent. Visitation was set forth with an evenly distributed holiday visitation schedule. Jason was also ordered to pay $200.00 per month in child support and to maintain Brooklyn on his insurance. The parties were ordered to split all medical and dental expenses not covered by insurance.

On May 21, 2007, Jason, filed a “Petition to Amend Petition for Determination of Custody, Child Support, Visitation, and Incidental Matters and Order.” This petition requested a modification of the visitation schedule to specifically set forth that Jason would be granted visitation with Brooklyn every other weekend beginning at 5:00 p.m. on Fridays and ending at 5:00 p.m. on Sundays. An Order was signed setting a Rule to Show Cause on the matter for June 11, 2007. No hearing was held.

|;,On August 8, 2007, a “Second Petition to Amend Petition for Determination of Custody, Child Support, Visitation, and Incidental Matters and Order” was filed by Jason. It proposed to modify the custodial arrangement so that each party would have physical custody of Brooklyn for two consecutive weeks at a time. A hearing was set for September 13, 2007. On that date, the parties entered into a consent judgment in which they were awarded equal shared custody with Jennifer named the domiciliary parent. The visitation schedule was agreed upon.

On March 2, 2010, Jason filed a “Petition to Modify Custody”, requesting a modification of the custodial arrangement so that Jason would be named the domiciliary parent of Brooklyn subject to reasonable visitation for Jennifer. The proposed visitation schedule provided for visitation with Jennifer every other weekend and an even split for holidays. The reason given for the requested modification was Jennifer’s relocation to Prairieville, along with alleged health and/or hygiene problems that occurred while Brooklyn was with Jennifer.

On March 24, 2010, the matter was continued on a motion from Jennifer, and a hearing date was set for April 26, 2010. Jennifer also submitted “Interrogatories and a Request for Production” to Jason on March 28, 2010. On April 12, 2010, Jennifer filed an “Answer, Exceptions, and Re-convention” in the matter. Exceptions of No Right and No Cause of Action were filed alleging Jason’s “Petition to Modify Custody failed to allege a material change in circumstances necessary for a change of custody”. In her reconventional demand, Jennifer requested back due child support. On April 19, 2010, Jason submitted answers and responses to the interrogatories and request for production made by Jennifer.

The matter proceeded to trial on April 26, 2010, however, due to the district Iscourt’s docket, it was continued to May 10, 2010: The matter was heard on May 10, 2010. The district court took the matter under advisement, and requested post-trial memorandum from the parties. The district court rendered judgment on June 17, 2010, denying Jennifer’s exceptions of no right and no cause of action. Joint custody was maintained, but custody was modified to name Jason primary domiciliary parent, with specific visitation fixed for Jennifer. Although the parties stipulated that both support and modification of custody and visitation would not take place until school started, the trial court disregarded this stipulation and terminated child support to Jennifer prior to school beginning and awarded the tax dependency exemption to Jason prior to school beginning.

Jennifer has appealed the judgment, asserting the trial court erred in failing to continue her as domiciliary parent and in terminating child support paid to her effective on June 16, 2010 despite the stipulation to the contrary. Jennifer also argued the trial court erred in excluding the testimony of her husband, Michael Lavigne, because he was not included on her witness list prior to trial.

ANALYSIS

There is a distinction between the burden of proof required to change a custody plan ordered pursuant to a considered decree and the burden of proof required to change a custody plan ordered pursuant to a non-considered decree (or stipulated judgment). Once a considered decree of permanent custody has been rendered by a court, the proponent of a change of custody bears the heavy burden of proving that a change of circumstances has occurred, such that the continuation of the present custody arrangement is so deleterious to the child as to justify a modification of the custody decree, or that the harm likely to be caused by a change of environment is ^substantially outweighed by its advantages to the child. Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). In cases where the underlying custody decree is a stipulated judgment, and the parties have consented to a custodial arrangement with no evidence as to parental fitness, the heavy burden of proof rule enunciated in Bergeron is inapplicable. Hensgens v. Hensgens, 94-1200 (La.App. 3 Cir. 3/15/95), 653 So.2d 48, writ denied, 95-1488 (La.9/22/95), 660 So.2d 478. Rather, a party seeking a modification of a consent decree must prove that there has been a material change of circumstances since the original (or previous) custody decree was entered and that the proposed modification is in the best interest of the child. Id. In the case before us, there was no considered decree, thus the heavier Bergeron standard does not apply and Jason must only prove that the proposed change to him as the domiciliary parent was in the best interests of Brooklyn.

Louisiana Civil Code Article 131 requires that the award of custody be based on the best interest of the child. The trial court also recognized that when parents cannot agree as to a custody arrangement, La.Civ.Code art. 134 provides twelve relevant factors the court “shall” consider in determining the best interest of the child. Those factors 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.
. -|k(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.
(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 exercised by each party.

After a thorough review of the record, we note that at the conclusion of the May 10, 2010 hearing, the matter was taken under advisement by the trial court and post-trial memoranda requested. The trial court issued its judgment on June 17, 2010. No written reasons for judgment were issued. Thus, we have no way of knowing what the trial court based its ruling on and whether it based its decision on the Article 134 factors, as it is required to do. We note in Leger v. Leger, 03-419, p. 1 (La.App. 3 Cir. 7/2/03), 854 So.2d 955, 956, this court suggested in a portion of its opinion entitled “Failure to Address Factors with Particularity,” that we cannot assume that a trial court actually considered factors based simply on the fact there may be evidence in the record that would have allowed it to do so. Further, the trial court erroneously disregarded the agreed-upon stipulation between the parties and terminated child support to Jennifer prior to school beginning and awarded Jason the Ifitax dependency exemption.

We cannot properly perform our appellate review under the circumstances; and, therefore, we elect to remand this case to the trial court for another hearing to determine the best interests of the child based on factors set out in Article 134. See C.J.M. v. C.L., 08-128 (La.App. 3 Cir. 6/5/08), 987 So.2d 317, (wherein this court remanded the case back to the trial court due to its failure to properly discuss any of the factors of Article 134 in its custody determination.)

The plaintiffs remaining assignments of error are rendered moot.

DECREE

For the above reasons, the judgment of the trial court is reversed and this matter is remanded to the trial court to proceed in accordance with this opinion. Costs of this appeal are assessed equally between the parties.

REVERSED AND REMANDED.


author: DREW, J.

text:
    Geneveive LADNER and Mike Ladner, Plaintiffs-Appellants v. TRINITY GROUP, LTD., Defendant-Appellee.
    No. 45,937-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 16, 2011.

      Ayres, Warren, Shelton & Williams, L.L.C., Shreveport, LA by Mark E. Posey, J. Todd Benson, for Appellants, Geneveive Ladner and Mike Ladner.
    Inabnet & Jones, L.L.C. by Scott G. Jones, Steven Curtis Mitchell, for Appel-lees, James Paul Price and Sarah Flowers-Price.
    Before GASKINS, DREW and LOLLEY, JJ.
   DREW, J.

It Geneveive and Mike Ladner appeal a judgment granting a motion for summary judgment and dismissing their personal injury claims.

We affirm.

FACTS

On October 18, 2005, James and Sarah Price, husband and wife, purchased two adjoining tracts located in Shreveport for $425,000. The larger tract, covering 4.263 acres, was bordered by Pines Road to the west and Jefferson Paige Road to the north. The smaller tract, covering 2.42 acres, was to the south of the larger tract along Pines Road. An abandoned barbeque restaurant was located on the larger tract at the corner of Pines and Jefferson Paige Roads. A small pond was located behind the restaurant.

Mike Ladner and his wife, Geneveive Ladner, lived on property adjacent to the east border of the Prices’ property. They had moved onto the property in 2005. The Ladners also operated a business there.

After midnight on March 15, 2007, Gene-veive Ladner went onto the Prices’ property to look at a car that had been driven into the pond located on the property. She was accompanied by her German Shepherd which weighed 120 pounds. When Geneveive Ladner attempted to tie the dog’s leash to a metal pipe sticking out of the ground on the Prices’ land, the dog struggled and apparently caused part of the pipe to fall and hit Geneveive Ladner’s right hand.

The Ladners filed suit against Trinity Group, Ltd., then later added the Prices as defendants. They alleged that the pipe was actually a rusty |2water pump that sat atop a dilapidated water well. They further alleged that Geneveive Ladner had sustained severe injuries to her right hand requiring numerous surgeries and leading to loss of use of that hand.

The Prices filed a motion for summary judgment in which they contended that the Ladners had no evidence that there was any defect in the pipe or in the alleged pump or water well that allegedly injured Geneveive Ladner, and, if such defect existed, that it presented an unreasonable risk of harm to her. They further contended that the Ladners could not prove the Prices had actual or constructive knowledge of any defect in the pipe or alleged pump or water well. In support of their motion, the Prices submitted their own affidavits and excerpts from the Lad-ners’ depositions.

The Ladners opposed the motion with James Prices’ deposition and an affidavit from their expert, Robert Borison. Bori-son stated in his affidavit that he is president of Total Safety Services, which investigates accidents and performs safety consultations. He added that he has over 40 years of experience in the fields of safety management, safety regulations and standards, and accident investigation, with an emphasis on applications and operations involving pipes, pumps, wellhead structures, and access control. Borison opined that the direct cause of the accident was the Prices’ failure to abate the unreasonably dangerous condition presented by the metal structure or artifact that struck Geneveive Ladner. He stated that [ ¡¡regardless of whether the structure or artifact was actually part of a water well hand pump, it was dangerous because it was unstable and subject to falling on a person and causing injury. He concluded that the structure or artifact served no identifiable useful purpose at the time of the accident, and it should have been removed, enclosed in a barricade or structure, or, at the very least, had its condition made more apparent through the use of signs warning of its location and potential danger.

The trial court granted the motion for summary judgment after determining there was no genuine issue of material fact that the Prices had actual or constructive knowledge of a defect on their property.

DISCUSSION

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Samaha v. Rau, 07-1726 (La.2/26/08), 977 So.2d 880. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; ie., whether there is any genuine issue of material 'fact, and whether the movant is entitled to judgment as a matter of law. Id.

A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

I/The burden of proof on a motion for summary judgment is set forth' in La. C.C.P. art. 966(C)(2):

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim-, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

This provision initially places the burden of producing evidence at the hearing on the motion for summary judgment on the mover, who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. Samaha v. Rau, supra; Wright v. Louisiana Power & Light, 06-1181 (La.3/9/07), 951 So.2d 1058. At that point, the party who bears the burden of persuasion at trial, usually the plaintiff, must come forth with evidence (affidavits or discovery responses) which demonstrates that he or she will be able to meet the burden at trial. Samaha v. Rau, supra; Wright v. Louisiana Power & Light, supra.

Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 00-2507 (La.12/8/00), 775 So.2d 1049.

Is An individual is responsible for the damage caused by things in his custody. La. C.C. art. 2317. The owner or custodian of a thing is answerable for damage caused by its defect only upon a showing that he knew or, in the exercise of reasonable care, should have known of the defect which caused the damage, that the damage could have been prevented by the use of reasonable care, and that he failed to exercise such care. La. C.C. art. 2317.1. Thus, to recover for damages caused by a defective thing, the plaintiff must prove that the thing was in the defendant’s custody, that the thing contained a defect which presented an unreasonable risk of harm to others, that this defective condition caused the damage and that the defendant knew or should have known of the defect. Pamplin v. Bossier Parish Community College, 38,533 (La.App.2d Cir.7/14/04), 878 So.2d 889, writ denied, 04-2310 (La.1/14/05), 889 So.2d 266.

James Price thought that Geneveive Ladner’s accident occurred on the larger tract. He described the pond where the car was located as being behind the restaurant.

According to James Price, the larger tract was mostly enclosed by fencing. He stated that an old barbed-wire fence separated the larger tract from the smaller tract to the south. He did not know the condition of the barbed-wire fence when he bought the property. James Price explained there was a chain link fence on the larger tract along its borders with Pines Road and Jefferson Paige Road. There was a gate on the Jefferson Paige Road border located approximately halfway between the northern corners ofj^the larger tract. A board fence began on the northeast corner of the larger tract and extended south, but James Price was uncertain exactly how much of the eastern border was fenced.

Mike Ladner testified in his deposition that the fence along Jefferson Paige Road was very old and torn down in spots. He also testified that a tree line and an old board fence with missing sections separated his property from the Prices’ property.

The Prices had limited contact with their property, which they purchased as a commercial real estate investment about 18 months prior to the accident. Their goal was to resell the property. James Price was originally interested in purchasing only the larger tract, but while visiting it with the realtor, he became interested in the smaller tract because there was standing timber on it.

James Price recalled that he and the realtor parked them vehicles near the barbeque restaurant. The realtor wanted to point out the property’s boundaries, so he and James Price walked along the fence on the north side from the northwest corner to the gate on Jefferson Paige Road. They also walked along the fence on the Pines Road side. They did not walk the entire fence line, go inside the gate or fence, or walk around the property. James Price was able to look across the larger tract because there was no timber to obstruct his vision. The Prices did not have a survey performed before them purchase, nor did they have anyone inspect the property. Sarah Price never visited the property prior to the purchase.

|7The Prices wanted to make the property more marketable, so they hired Rodney Ketchum to demolish the barbeque restaurant, fill in the pond, and level the dirt on the property. Those were the only changes that the Prices made to the property.

James Price met Ketchum at the property to show him what needed to be done. They did not walk around the property, but remained in an area near the restaurant- and pond. The work began a couple of weeks later. James Price thought the work was started in March of 2007, but he was unsure if it began before or after the accident. He did recall seeing that a car had been pushed halfway into the pond when he went to the property to meet Ketchum. Mike Ladner thought the restaurant had been demolished before his wife was injured. Geneveive Ladner first noticed that the land was being cleared after she was discharged from the hospital following treatment for injuries sustained in the accident.

James Price visited the property at least five times to check on the progress of Ketchum’s work. James Price thought his wife accompanied him on a couple of these visits. After Ketchum’s work was' completed, the property was placed on the market, which James Price thought occurred in May of 2007. James Price drove past the property once or twice to see if his “for sale” signs remained up, but he did not visit the property.

James Price testified in his affidavit that he had walked along the edges of the property, not the entire tract. Sarah Price stated in her affidavit [sthat she rarely visited the property after the purchase and usually stayed in her vehicle. She also stated that she never walked around the property.

The Ladners occasionally trespassed on the Prices’ property. James Price thought there was a “no trespassing” sign on the Pines Road fence and two such signs on the Jefferson Paige Road fence. Mike Ladner did not recall seeing any “no trespassing” signs on the fences before the accident.

Geneveive Ladner recalled walking around the property a couple of times before the accident. Mike Ladner estimated that he had ridden his four wheeler on the property about 8-10 times, and possibly more often. He normally entered the property near the far eastern corner. He recalled that others regularly raced various recreational vehicles such as dirt bikes and four wheelers on the Prices’ property. Mike Ladner guessed that he had last been on the Prices’ property about a month or two before his wife’s accident. James Price did not know that recreational vehicles were being driven on his property.

Although the accident occurred at night, Geneveive Ladner did not think it was very dark at the time because there was light from a nearby Brookshire’s grocery store and Pines Road illuminating the area.

Geneveive Ladner recalled that the pipe looked like it had a spout atop it. She was about to put the dog’s leash over the spout and tie it around the pole when her dog resisted and caused the spout to fall by either bumping or pulling the leash against a brace on the pipe. That was her only explanation for what caused it to fall. Ge-neveive Ladner thought the pipe was rusted because she found rust on her hand after the accident.

1 nThere is no evidence that the Prices had actual knowledge of the alleged defect on their property. James Price stated in his affidavit that: (i) he had no knowledge of any water wells or water pipes protruding from the ground on the property prior to or on March 15, 2007; (ii) he had no knowledge prior to or on March 15, 2007, of a water well on the property; and (iii) he had no knowledge either prior to or after March 15, 2007, of any rusted brace or defective well or pump anywhere on the property. Sarah essentially stated likewise regarding her knowledge in her affidavit. Ketchum never mentioned to the Prices that he had seen a well on their property.

The Ladners contend that the Prices had constructive notice of the defect, and cannot use their failure to inspect the property as a means to escape liability. The concept of constructive knowledge imposes a reasonable duty to discover apparent defects in things under the defendant’s garde. Johnson v. Entergy Corp., 36,323 (La.App.2d Cir.9/20/02), 827 So.2d 1234.

The alleged defect was not apparent. Mike Ladner thought he had seen the pipe before, but had believed it was a fence post. Geneveive Ladner had never noticed the pipe on her previous walks. She did not even think the pipe was part of a well until her husband later told her. She thought it was merely a pipe or pole sticking out of the ground. She did not recall seeing anything like a concrete base around the lower portion of the pipe.

|10Based upon the foregoing, we conclude that there is no genuine issue of material fact regarding whether the Prices had actual or constructive knowledge of the alleged defect on their property. The trial court correctly granted the Prices’ motion for summary judgment.

DECREE

At the Ladners’ cost, the judgment is AFFIRMED.

      . The Prices are apparently shareholders and officers of Trinity Group, Ltd.

      . Borison’s report, which was referenced in his affidavit, was attached to the affidavit. Borison stated in his report that the direct cause of the accident was the failure of the Prices to abate the unsafe nuisance of an abandoned water well hand pump on their property. He additionally stated that the presence of nuisances on the property such as the abandoned restaurant, overgrown vegetation, and the pond should have alerted the Prices to inspect the property for other nuisances.

      . The smaller tract had no other fences.

      . The timber was sold before he purchased the tract, and it was cut shortly after he bought the tract.

      . The car wás about 20-30 yards from the fence along Pines Road, so it could be seen ■from outside the fence.