author: COOKS, Judge. THIBODEAUX, Chief Judge, PAINTER, Judge, DECUIR, J., PICKETT, J.,

text:
    Patrick E. PHILLIPS, Jr., et al. v. G & H SEED CO., et al.
    No. 10-1405.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.

      Elwood C. Stevens, Jr., Domengeaux Wright Roy & Edwards, LLC, André F. Toce, The Toce Firm, A.P.L.C., Lafayette, LA, Jerald Edward Knoll, Sr., The Knoll Law Firm, LLC, Marksville, LA, for Plaintiffs/Appellants, Patrick E. Phillips, et al.
    Gary A. Bezet, Robert E. Dille, Carol L. Galloway, Allison N. Benoit, Kean, Miller, Hawthorne, D’Armond, McCowan & Jar-man, L.L.P., Baton Rouge, LA, Terrence D. McCay, Kean, Miller, Hawthorne, D’Ar-mond, McCowan & Jarman, L.L.P., Lake Charles, LA, for Defendants/Appellees, Bayer CropScience LP, Michael Redlich, G & H Seed Company, Inc., Crowley Grain Drier, Inc., Nolan J. Guillot, Inc., and Mamou Rice Drier and Warehouse, Inc.
    Raymond P. Ward, Adams and Reese, L.L.P., New Orleans, LA, for Defendants/Appellees, Bayer CropScience LP and Michael Redlich.
    Michael T. Pulaski, McCranie, Sistrunk, Anzelmo, Hardy, Maxwell & McDaniel, PC, Covington, LA, for Defendants/Appel-lees, Allianz Global Risks and U.S. Insurance Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, JOHN D. SAUNDERS, OSWALD A. DECUIR, JIMMIE C. PETERS, MARC T. AMY, ELIZABETH A. PICKETT, BILLY H. EZELL, J. DAVID PAINTER, SHANNON J. GREMILLION and PHYLLIS M. KEATY, Judges.
   COOKS, Judge.

| plaintiffs, who consist of several dozen buyers and/or processors of crawfish, appeal the trial court’s granting of the defendants’ motions for summary judgment, which dismissed the remaining claims of the buyer/proeessor plaintiffs. In Phillips v. G & H Seed Co., 10-1405 (La.App. 3 Cir. 5/11/11), 66 So.3d 507 (hereafter referred to as Phillips II), a panel of this Court reversed the summary judgment grants, and remanded the matter back to the trial court for trial on the merits. The panel in Phillips II reversed on the grounds that the trial court based its granting of the summary judgments solely on this Court’s prior opinion in Phillips v. G & H Seed Co., 08-934 (La.App. 3 Cir. 4/8/09), 10 So.3d 339, writ denied, 09-1504 (La.10/30/09), 21 So.3d 284 (hereafter referred to as Phillips I). In Phillips I, a panel of this Court held the plaintiffs in that case (who were three specifically selected buyers and/or processors of craw-fish) “failed to prove a proprietary interest in the crawfish crop destroyed by the use of ICON.... [and as such] the plaintiffs’ cause must fail.” Phillips I, 10 So.3d at 344. In Phillips II, we held “a per se proprietary interest rule is not the law of Louisiana in a products liability case” and the jurisprudence of this state has consistently mandated “a case specific duty-risk analysis be undertaken to determine the scope and extent of the defendants duties in this case.” Phillips II, 66 So.3d at 516. Defendants, Bayer CropScience LP, its employee/salesman, Michael Redlich, and several companies who purchased the allegedly defective insecticide from Bayer CropScience, LP, applied for writs to the Louisiana Supreme Court. After considering the writ application, the supreme court “remanded to the Third Circuit Court of Appeal for en banc opinion after briefing and argument.” Phillips v. G & H Seed Co., 11-1861 (La.11/18/11), 75 So.3d 460.

|2After en banc consideration, a majority of the judges vote to adopt Phillips II as the controlling opinion from this Court, which we reissue this date:

Plaintiffs, who consist of several dozen buyers and/or processors of crawfish, appeal the trial court’s granting of the defendants’ motions for summary judgment, which dismissed the remaining claims of the buyer/processor plaintiffs. For the following reasons, we reverse the summary judgment grants, and remand the matter back to the trial court for trial on the merits.

FACTS AND PROCEDURAL HISTORY

This protracted and contentious litigation had its genesis in the late 1990’s, when Bayer CropScience LP and its employee, Michael G. Redlich, marketed the insecticide ICON in Louisiana. Certain companies purchased ICON, applied it to rice seed, and sold the ICON-coated rice seed to rice farmers in Louisiana. Many of these rice farmers also raised crawfish in their rice ponds.

Essentially, Plaintiffs allege the ICON coated rice seed was introduced into the rice fields/crawfish ponds of South Louisiana in 1999. The active ingredient in ICON was fipronil, which is a chemical used to control arthropods and is used in a variety of compounds to control insects such as termites, fleas, mole crickets and the rice water weevil. According to the plaintiffs, the introduction of ICON killed and/or sterilized the crawfish, both wild and pond-raised. According to the plaintiffs, as a result of the contamination, Louisiana’s annual farm-raised crawfish crop dropped from over 60 million pounds to approximately 10 million pounds.

Defendants argued the use of ICON is compatible with crawfish farming, provided the farmer allows for a suitable waiting period between planting the ICON-treated rice seed and introducing crawfish to the rice field. Defendants also argued the record breaking drought in Louisiana during the time in question was the reason for the decline in crawfish production.

| sIn 1999, a class action lawsuit was filed on behalf of all crawfish farmers in Louisiana, Craig West, et al. v. G & H Seed Co., et al., No. 99-C-4984-A in the Twenty-Seventh Judicial District Court, Parish of St. Landry. That lawsuit was eventually settled.

Thereafter a class action suit was initiated on behalf of Patrick Phillips and At-chafalaya Processors, Inc, individually and on behalf of all others similarly situated. This class action suit was brought by craw-fish buyers, processors and resellers. Named as Defendants were Bayer Crop-Science LP and Michael Redlich. Also named as Defendants were the companies who purchased the ICON, applied it to the rice seed, and sold it to the farmers: G & H Seed Co., Inc., Crowley Grain Drier, Inc., Delhi Seed Co., Inc., Terral Seed Co., Inc., Mamou Rice Drier & Warehouse, Inc.

Plaintiffs eventually abandoned their efforts to certify either a plaintiff or defendant class. Thereafter, through a series of supplemental and amending petitions, the matter proceeded as a cumulation of individual actions comprising the claims of approximately 72 individual crawfish buyers, resellers, and processors.

Bayer filed an exception of no cause of action, contending in order to maintain a delictual action against a manufacturer for property damage caused by a defective product, the claimants must have some proprietary interest in the damaged property. Bayer argued that since none of the plaintiffs in this litigation are crawfish farmers, and none of them had any ownership in the damaged crop, they could not demonstrate the required proprietary interest. Plaintiffs argued there were existing joint ventures between the crawfish farmers and buyers/processors during the time the crawfish crop was damaged. The trial court overruled the exception, rejecting the per se exclusionary/proprietary interest rule of Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927), in favor of the policy driven duty/risk analysis espoused in PPG Industries, Inc. v. Bean Dredging, 447 So.2d 1058 (La.1984). The trial court found in applying a duty-risk analysis, the law extended a remedy to the buyer/processor plaintiffs. Bayer applied for writs to this Court. Writs were denied.

Because of the enormity of trying all 72 actions at once, the trial court determined it would be best to try the actions of four plaintiffs, three to be chosen by the plaintiffs and one chosen by the defense. This number was eventually reduced to three plaintiffs: Patrick Phillips (d/b/a Phillips Seafood), James Bernard (d/b/a J. Bernard Seafood Processors, Inc.), and Lisa Guidry (d/b/a Guidry’s Crawfish).

After a full trial on the merits, Plaintiffs filed a Motion for Directed Verdict on whether the Defendants’ duty extended to these buyer/processor plaintiffs. Finding there was an “ease of association from farmer to wholesaler” such that farmers and processors are “inextricably interwoven and symbiotic in their relationships,” the trial court granted the Motion for Directed Verdict. The jury then returned a verdict in favor of each of the three plaintiffs, assigning 94% fault or causation to Bayer, 1% to Bayer salesman Michael Redlich, and 4% to the drought that occurred in South Louisiana. It awarded $900,000 to plaintiff Phillips, $750,000 in damages to plaintiff Bernard, and $100,000 to plaintiff Guidry.

Defendants timely filed a Motion for Judgment Notwithstanding the Verdict, New Trial, and Remittitur. The motions were denied and Defendants filed an appeal with this Court.

A five judge panel of this Court reversed the trial court’s directed verdict on scope of duty and set aside the jury’s verdict. Phillips v. G & H Seed Co., 08-934 (La.App. 3 Cir. 4/8/09), 10 So.3d 339 (hereafter referred to as Phillips I). The | smajority reasoned that since “the plaintiffs in this case failed to prove a proprietary interest in the crawfish crop destroyed by the use of ICON.... the plaintiffs cause must fail.” Id. at 344. The majority did not undertake a duty-risk analysis or apply the PPG factors as done by the trial court. Instead it applied the per se exclusionary/proprietary interest rule of Robins Dry Dock. Plaintiffs also note the majority did not explain what would be “sufficient” to establish a proprietary interest under Louisiana law.

Judge Saunders dissented from the majority opinion, finding it contradicted the Louisiana Supreme Court’s finding in 9 to 5 Fashions, Inc. v. Spurney, 538 So.2d 228, 234 (La.1989), that “the PPG case abrogated] the rule that flatly prohibited recovery for intangible economic loss produced by negligent conduct.” Judge Saunders found “the only conclusion a reasonable juror could reach was that Bayer had reckless disregard for the potential ramifications to this state’s crawfish industry, as a whole, when crawfish farmers used ICON.” Phillips I, 10 So.3d at 345. This callousness, Judge Saunders concluded, was sufficient to support the trial court’s directed verdict on scope of duty. Further, Judge Saunders noted that even if one interprets PPG as the majority does, it was factually distinguishable from the present case. In PPG, the plaintiff had an alternative source to get the natural gas it needed, whereas the buyers/processors here had no other source for the crawfish they contracted to receive from the craw-fish farmers. This interwoven, symbiotic relationship between crawfish farmers and crawfish buyers/processors was different than that present in PPG.

Plaintiffs’ Application for Rehearing to this Court was denied. Similarly, the application for a Writ of Review to the Louisiana Supreme Court was denied. Phillips v. G & H Seed Co., 09-1504 (La.10/30/09), 21 So.3d 284. Following these denials, Defendants filed Motions for Summary Judgment against all the remaining |fibuyer/processor plaintiffs based on the proprietary interest requirement espoused by this Court’s opinion in Phillips I.

At the hearing on the summary judgment motions, Plaintiffs argued the duty-risk analysis set forth in the PPG case was controlling in this case. Plaintiffs also contended even if the trial court was compelled to enforce a proprietary interest requirement pursuant to this Court’s decision in Phillips I, that term had never been defined by our Supreme Court to require ownership to assert a claim for economic damages. Plaintiffs complained they were at a loss to understand exactly what material fact(s) were necessary to establish a level or degree of interest sufficient to allow them to prevail. Nonetheless, in an attempt to meet this burden of proof, Plaintiffs submitted numerous sworn affidavits attesting to the nature and extent of the buyers/processors involvement in the Louisiana crawfish industry.

In oral reasons for judgment, the trial court voiced its disagreement with the opinion in Phillips I. However, believing it was constrained by that ruling, the trial court granted the motions for summary judgment and dismissed the remaining claims of the buyer/processor plaintiffs.

|7Plaintiffs have appealed the trial court’s granting of the summary judgment, and assert the following assignments of error:

1. It was error to ignore the mandates of PPG and its progeny and not employ a duty-risk/ease of association analysis which considers the scope of Defendants’ duties in the context of moral, social and economic issues involved and a view toward the ideal of justice.
| r2. It was error to require Plaintiffs to prove a “proprietary interest” in the damages crawfish crops as a prerequisite to recovery in this tort suit asserting claims under the Louisiana Products Liability Act for breach of express warranty, failure to warn and false representations.
3. If a proprietary interest is required (which is disputed), then the trial court erred in applying Phillips I so as to require actual “ownership” in order to establish such an interest contrary to Supreme Court jurisprudence which clearly envisions an interest “derived from the owner” (less than ownership but more than a mere guest or member of the general public).
4. The trial court erred in granting summary judgments even against those buyers/processors who presented issues of fact as to an actual “ownership” interest in crawfish ponds from which they would have supplied crawfish top their respective businesses, “but for” Defendants’ negligent acts and egregious conduct.
5. The trial court erred in granting summary judgments even against those buyers/processors who demonstrated long standing, symbiotic relationships with the farmers/fishermen and reasonable, recurring and investment-based expectations of an economic interest in the annual crawfish crops which, as a matter of law, made their damages particularly foreseeable and established material issues as to the existence of a sufficient interest to be worthy of legal protection.
6. The trial court committed manifest error by concluding that even the claims of “hybrids” should be summarily dismissed because many of them had “settled” their claims in a companion Class Action settlement in 2004 between these Defendants and the farmer/fishermen group of claimants, even though the final judgment in that matter expressly reserved the right of all settling farmers/fishermen “to pursue their respective claims as buyers and/or processors of crawfish.”

Defendants contend that this Court’s previous decision in Phillips I has already decided the legal issues raised in this appeal, and thus, the “Law of the Case” doctrine applies.

ANALYSIS

A. Law of the Case Doctrine.

We will first address Defendants’ argument that this Court’s decision in Phillips I is law of the case, and should not be revisited. For the following reasons, we do not find the law of the case doctrine applicable here.

| nGenerally, the law of the case doctrine applies to prior rulings of the appellate court and an appeals court will not reconsider its own ruling in the same case. Gentry v. Biddle, 05-61 (La.App. 3 Cir. 11/2/05), 916 So.2d 347. However, the application of this doctrine is discretionary and an appellate court may reconsider an issue if the prior decision was “palpably erroneous or its application would result in manifest injustice.” Id. at 352 (quoting Griggs v. Riverland Med. Ctr., 98-256, p. 6 (La.App. 3 Cir. 10/14/98), 722 So.2d 15, 19, writ denied, 99-385 (La.5/28/99), 735 So.2d 622).

We note that earlier in the procedural history of this case, Defendants filed an exception of no cause of action asserting, for Plaintiffs to maintain a delictual action, they must first demonstrate some proprietary interest in the damaged property. The trial court overruled the exception, rejecting the per se exclusionary/proprietary interest rule of Robins Dry Dock in favor of the policy driven duty/risk analysis set forth by the Louisiana Supreme Court in PPG Industries. A three member panel of this Court unanimously denied writs, finding no error in the trial court’s decision. However, on appeal a five-judge panel (with one dissenting judge) reached an opposite conclusion, finding “the plaintiffs case [sic] must fail” because they “failed to prove a proprietary interest in the crawfish crop.” Phillips I, 10 So.3d at 344. Finding this Court’s previous rulings on this issue are equivocal, we choose not to apply the law of the case doctrine.

B. Proprietary Interest.

We initially make the following observations at the outset of our discussion on proprietary interest: (1) the trial court unquestionably based its ruling granting the summary judgments solely on this Court’s prior decision in Phillips I, 10 So.3d 339; (2) although the opinion in Phillips I discussed PPG and the duty-risk method, it did not engage in any such duty-risk analysis; instead it resurrected the | inbright-lme litmus test that required a proprietary interest in the damaged property that was abrogated in PPG.

The issue in this case boils down to whether Louisiana will apply a bright-line litmus test mandating proprietary interest in damaged property as a prerequisite to recovery, or do Louisiana courts apply a multi-factor, policy-driven, duty-risk analysis when determining the scope and extent of a defendant’s duties under the Louisiana Products Liability Act for particularly foreseeable economic damages. Finding our previous opinion in Phillips I failed to consider the instruction of the Louisiana Supreme Court’s opinion in PPG, which directed that a duty-risk analysis should be performed to determine the scope and extent of a particular defendant’s duties, we decline to follow it, and instead adhere to the dictates of our state’s highest judicial court. We find the course of action taken in Phillips I, can, in certain instances, deprive an innocent person of any remedy for damage suffered in direct contrast to our fundamental civil law principal that obliges a person to fully repair damage caused by his fault. La.Civ.Code art. 2315.

Our review of the jurisprudence of this State indicates that the per se exclusionary/proprietary interest rule illustrated in Robins Dry Dock is not the law of this state. Rather, a duty-risk analysis was adopted by the Louisiana Supreme Court in PPG.

In PPG, the defendant’s dredging operations damaged a gas pipeline owned by Texaco. Texaco had a contract to supply gas to PPG. As a result of the damage to the pipeline, PPG was forced to obtain gas from other sources. PPG sued Bean Dredging, seeking recovery of the additional costs expended to obtain gas. |1TAlthough the supreme court ultimately held PPG’s damages did not fall within the scope of the duty not to damage a pipeline owned by Texaco, it did so after undertaking a duty-risk analysis to determine whether that particular risk fell within the scope of the duty. The court stated:

Policy considerations determine the reach of the rule, and there must be an ease of association between the rule of conduct, the risk of injury, and the loss sought to be recovered. Hill v. Lundin & Assoc., Inc., 260 La. 542, 256 So.2d 620 (1972). A judge, when determining whether the interest of the party seeking recovery of damages is one that falls within the intended protection of the rule of law whose violation gave rise to the damages, should consider the particular case in the terms of the moral, social and economic values involved, as well as with a view toward the ideal of justice. See Entrevia v. Hood, 427 So.2d 1146 (La.1983).

PPG Indus., Inc., 447 So.2d at 1061.

The court in PPG did caution that a party who negligently causes injury to property will not always be held legally responsible to all persons for all damages flowing in a “but for” sequence, because the list of possible victims might be “expanded indefinitely.” Thus, the court must “necessarily make a policy decision on the limitation of recovery of damages.” Id. at 1061-62.

In his dissent in PPG, Justice Calogero “applaud[ed] the majority’s applying a duty risk analysis in the consideration of tort recovery ... and [in] abandoning the per se exclusion of such damages which our courts have heretofore adopted on the heels of Robins and Forcum-James [Co. v. Duke Transportation Co., 231 La. 953, 93 So.2d 228 (1957) ].”

The cases since have consistently followed the duty-risk analysis set forth in PPG. In Cleco Corp. v. Johnson, 01-175 (La.9/18/01), 795 So.2d 302, a negligent truck operator backed into a utility pole causing a power surge that ultimately caused damages to the property of Cleco’s customers. Cleco then paid for the 112customers’ damages and filed suit to recover those payments. The supreme court examined whether the law afforded Cleco’s customers a cause of action. The supreme court utilized the case by case, duty-risk analysis set forth in PPG, and found that the law extended a remedy to both Cleco and its customers. In her concurring opinion, Justice Kimball specifically noted “[t]he majority today has chosen to handle these claims on a case by case basis using the duty-risk analysis, which in my view is the preferable approach.” Id. at 307. Even the dissent in Cleco did not question the majority’s decision to utilize a duty-risk analysis as set forth in PPG, but rather believed the duty allegedly violated in that case did not encompass the particular risk of injury sustained by Cleco and/or its customers.

The court in Cleco, cited with approval this Court’s decision in Istre v. Fidelity Fire & Casualty Ins. Co., 628 So.2d 1229 (La.App. 3 Cir.1993), writ denied, 634 So.2d 852 (La.1994). In Istre, a backhoe operator working for a construction company came into contact with electrical lines causing a power outage that knocked out electrical power to a traffic signal four miles away. Approximately one hour later, the plaintiff was involved in an accident due to the traffic light outage. The plaintiff subsequently filed suit against several parties, including the construction company. After utilizing a duty-risk analysis, this Court found the construction company liable, stating:

The construction company’s main argument is that its duty to avoid knocking out electrical power does not extend to the risk that one hour later, a driver at an intersection four miles away, will fail to see that traffic lights are not working and that other drivers were treating the intersection as a four-way stop, out of turn, and hurt another driver who was entering the intersection in obedience to a four-way stop rotation. To this it pleads that the company could not have known that engaging this one power line would create a general outage affecting signal lights four miles away.
We reject this argument. This backhoe operator knew the risk of his backhoe knocking out power. His construction company knew or should have known the risks to people and property caused by power outages, and the predictability of widespread effects and delays in restoring power. The increased risk of an accident caused by this | ^defendant’s conduct was still present when the accident occurred. This accident to this plaintiff was reasonably foreseeable. This defendant is liable to the plaintiffs for the breach of its duty.

Id. at 1232.

As noted by Judge Saunders in his dissent in Phillips I, the supreme court in 9 to 5 Fashions, Inc. v. Spurney, 538 So.2d 228, 234 (La.1989), specifically found that “the PPG case abrogated] the rule that flatly prohibited recovery for intangible economic loss produced by negligent conduct.”

In Roberts v. Benoit, 605 So.2d 1032 (La.1991), the supreme court reiterated that the extent of protection owed a particular plaintiff is determined on a case-by-case basis to avoid making a defendant an insurer of all persons against all harms. The Roberts court found that “[rjegardless if stated in terms of proximate cause, legal cause, or duty, the scope of the duty inquiry is ultimately a question of policy as to whether the particular risk falls within the scope of the duty.” Id. at 1044.

We also note the comments of several commentators, that have expressed both the conclusion that PPG's utilization of a case by case duty-risk analysis is the law in Louisiana, and that it is the preferable approach. Justice Dennis, in his opinion in Pitre v. Opelousas General Hospital, et al., 530 So.2d 1151, 1155-56 (La.1988), citing Prosser and Keeton, stated:

The duty risk approach is most helpful, however, in cases where the only issue is in reality whether the defendant stands in any relationship to the plaintiff as to create any legally recognized obligation of conduct for the plaintiffs benefit.

Plaintiffs also call this Court’s attention to the following language from a leading treatise on tort law in this state:

Neither a blanket denial nor an unlimited approval of recovery is appropriate. One of the fears is that allowing recovery may subject defendants to liability for an indeterminate amount of damages to a potentially indeterminate class of claimants. Another is that in some cases, allowing recovery will result in double compensation because the plaintiff has already protected himself from the risk of the economic harm through contract, such as insurance, indemnity or the increased price for his goods. Also, in some cases, the economic 114harm the plaintiff suffers is an ordinary risk of the enterprise in which he is participating. However, where none of these factors is justified, recovery should be permitted. Thus a case-by-case analysis appears superior to the > Robins “no duty” rule.

Frank L. Maraist & Thomas C. Galligan, Louisiana Tort Law, § 5.09 (1996).

Our review of the jurisprudence establishes that the Louisiana Supreme Court in PPG, and the cases that followed, abandoned the per se no duty rule espoused in Robins Dry Dock and Forcwm-James in favor of a duty-risk analysis. Rather than “taking a mechanical approach to the unreasoned conclusion that the petition for economic loss caused by negligent interference with contractual relations fails to state a cause of action,” the supreme court concluded a more nuanced, case specific, duty-risk analysis was preferable. PPG, 447 So.2d at 1061. PPG clearly shows the supreme court did not intend to close the door to recovery for all claims of economic harm arising out of damage to what is technically a third person’s property, i.e., “proprietary interest.” It made such recovery available in certain circumstances for limited groups of people with a special interest in or relationship with the damaged property, whose damages were a particularly foreseeable result of the tortious conduct of the defendant. Although the opinion in Phillips I discussed PPG and its utilization of a duty-risk method of analysis, the court failed to perform any such duty-risk analysis, and instead concluded the “plaintiffs’ cause must fail” because they failed to prove a proprietary interest in the damaged property. Phillips I, 10 So.3d at 344. This was contrary to the law.

CONCLUSION

For the foregoing reasons, we reverse the trial court’s grant of the summary judgments because a per se proprietary interest rule is not the law of Louisiana in a products liability case. Our Louisiana Supreme Court in PPG Indus. Inc., 447 So.2d 1058, mandates a case specific duty-risk analysis be undertaken to determine the scope and extent of the defendants’ duties in this case. As the trial court based | lfiits granting of the summary judgments solely on this Court’s opinion in Phillips I, we now reverse and remand this case back to the trial court for further proceedings consistent with this opinion. As this case is before us on grants of summary judgment, it is not appropriate for this Court to determine or even speculate on the result of the required duty-risk analysis. Our determination on this issue renders Plaintiffs’ other assignments of error moot. All costs of this appeal are assessed to Defendant-Appellees.

REVERSED AND REMANDED.

THIBODEAUX, Chief Judge, concurs and assigns additional reasons.

PAINTER, J., concurs and assigns written reasons.

DECUIR, J., dissents and assigns written reasons.

PICKETT, J., dissents and assigns written reasons.

EZELL, J., dissents for the reasons assigned by DECUIR, J., and PICKETT, J.

GREMILLION, J., dissents for the reasons assigned by DECUIR, J., and PICKETT, J.

GENOVESE, J., recused.

THIBODEAUX, Chief Judge,

concurring for additional reasons.

hi fully agree with the majority opinion. I add this brief comment to provide an additional reason for reversal. While I do not agree that the proprietary interest rule is the law in Louisiana, the plaintiffs did not attempt to prove proprietary interest in Phillips I. This case is properly remanded to allow them to prove that standard, if they choose to do so, as an additional supplement to a duty-risk analysis.

PAINTER, Judge,

concurring.

1,1 feel that a duty risk analysis is applicable here. The question is how far the risk extends. All parties were not in the same relationship with the crawfish farmers. Many of these cases have different relationships and should not be. lumped together. Issues of fact remain. Therefore, summary judgment is not appropriate. I therefore concur in the majority opinion herein.

DECUIR, J.,

dissenting.

1,1 dissent for the reasons assigned by Judge Pickett, and for the additional reasons herein.

This is certainly not a new issue for this court. In PPG Industries, Inc. v. Bean Dredging Corp. (La.App. 3 Cir.1982), 419 So.2d 23, 24-25, this court said:

The issue, as posed by appellee, is whether the law as expressed in Robin’s [Robins ] Dry Dock & Repair Company v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927), and Louisiana’s adoption thereof, Forcum-James Co. v. Duke Transportation Co., 231 La. 953, 93 So.2d 228 (La.1957), should be overruled.
Robin’s [Robins ] Dry Dock, supra, is on point. Hence, the question becomes, is it time to re-examine the doctrine announced therein, and if so, which court should examine the wisdom of that decision.
Defendant’s position, representing the orthodox view, is the general recognition of non-liability for negligent interference in existing contracts or with prospective contractual relations. The rule relieves an unwary tortfeasor from potentially ruinous liability for indirect economic losses. As was noted in James, Limitations on Liability for Economic Loss Caused by Negligence: A Pragmatic Appraisal, 25 Vand.L.Rev. 43 (1972), under the rule, “The insurer of A’s life has no action against one who negligently causes A’s premature death; the employer has no action for sums that he has had to pay because defendant has negligently injured his employee; a ship’s time charterer has no action for loss of the ship’s use while it is laid up for repairs necessitated by defendant’s negligence; and a |2workman has no action for loss of wages during a layoff resulting from damage negligently caused to his employer’s plant.”
In each of the aforementioned examples of the doctrine’s application the loss is indirect and economic. Furthermore, serious problems face insurers in handling insurance against potentially wide, open-ended liability. On the other hand, plaintiff could have contracted for Texaco to indemnify appellant for economic loss occasioned by third party negligence, but apparently failed to do so. The rule provides a simple, clear and predictable rule for the commercial world to follow, make its plans and insure accordingly.
Appellant’s position, although representing the minority view in this country, is equally persuasive. PPG has un-disputably suffered damage, through no fault of their own, as a result of defendants’ negligence and they submit that the rule of Robin’s Dry Dock is extremely archaic, arbitrary, and unfair and should not be maintained in our modern society. In support thereof, PPG contends that difficulty in proof of causation in damages and the possibility of fraudulent claims is not a valid reason to refuse recognition of an otherwise valid cause of action, nor is limiting defendants’ commercial liability of itself valid grounds for denying plaintiff its day in court. Instead, liability should be a function of foreseeability and nature of loss. Such a rule would lessen the burden of placing such losses upon innocent plaintiffs and shift the responsibility to insure to the negligent defendant. Comment, 88 Harv.L.Rev. 444 (1974).
Preliminarily we address the question of whether the Robin’s [Robins ] Dry Dock doctrine has acquired the status of jurisprudence constante. We believe it has. Our research has revealed no substantial deviation from the doctrine, under the circumstances presented herein, since its Louisiana adoption in 1957. Courts of Appeal are bound to follow decisions of the Supreme Court. United States Fidelity and Guaranty Co. v. Green, 252 La. 227, 210 So.2d 328 (La.1968), overruled on other grounds, Creech v. Capitol Mack, Inc., 287 So.2d 497 (La.1974). When jurisprudence has consistently established a uniform interpretation, we are obliged to follow that rule absent mandate to the contrary. Garrett v. Pioneer Production Corp., 390 So.2d 851 (La.1980).
We are constrained to follow this rule of loss distribution. Accordingly the judgment appealed from is affirmed at appellant’s cost.

The supreme court affirmed our decision. However, without overruling For-cum^-James, the majority discussed the policy reasons which barred recovery under a duty risk analysis. PPG Industries, Inc. v. Bean Dredging, 447 So.2d 1058 (La.1984). Despite comments by Justice Calogero in his dissent that the majority was abandoning the rule, and the majority’s characterization in 9 to 5 Fashions, Inc., v. Spumey, 538 So.2d 228 (La.1989), of PPG as abrogating the per se exclusionary rule, Forcum-James has not been overruled.

Accordingly, we are constrained to follow the actual holdings of the supreme court. Just as the five-judge panel of this court did in Phillips, 08-934 (La.App.3 Cir. 4/8/09), 10 So.3d 339, writ denied, 09-1504 (La.10/30/09), 21 So.3d 284, and just as the federal court did in Wiltz v. Bayer Crop-Science, 645 F.3d 690 (5th Cir.2011). Today as in 1982, we are not the appropriate court to change this rule of law.

The trial court should be affirmed.

PICKETT, J.,

dissenting.

_j_jl dissent for the reasons assigned by Judge Decuir, and for the additional reasons herein.

Having reviewed the materials and the transcript of the hearing on the motion for summary judgment in the court below, I continue to believe that the analysis in Phillips v. G & H Seed Co., Inc., 08-934 (La.App. 3 Cir. 4/8/09), 10 So.3d 339, writ denied, 09-1504 (La.10/30/09), 21 So.3d 284, is correct. In that case, we dismissed the claims of three bellwether plaintiffs after a full jury trial, finding that they had no cause of action. These three plaintiffs were chosen because their claims were representative of the claims of the defendants before us today. On remand, the remaining plaintiffs had an opportunity to show that they had a proprietary interest in the crawfish and were differently situated than the bellwether plaintiffs. Though the trial court noted that he disagreed with our previous decision, he rightly found that he was bound to follow it and granted the motion for summary judgment and dismissed the claims. The trial court was correct. These buyers and processors of the crawfish cannot recover from the defendants. There were no genuine issues of material fact, and there were strictly legal arguments presented below. The trial court should be affirmed, and the plaintiff’s claims should be dismissed.

      . There was also a corollary federal action in the United States District Court, Western District of Louisiana, Wiltz, et al. v. Bayer Crop-Science, et al., Docket No. 08-2024, which arises from the exact same set of facts as the present case and concerns the same question regarding the scope of the defendants' duty. The Wiltz case previously came to this Court as an appeal from the denial of a Motion to Intervene in Phillips. The Wiltz intervention in Phillips was ultimately denied by this Court. See Phillips v. G & H Seed Co., 09-1102 (La.App. 3 Cir. 3/10/10), 32 So.3d 1134, writ denied, 10-822 (La.6/18/10), 38 So.3d 325. The matter was then removed by the defendants to federal court. The defendants then filed a motion for summary judgment on the alleged lack of a proprietary interest in the plaintiffs. Much as the trial court did in the present case, the federal district court judge granted the motion for summary judgment even though he did not believe a bright line litmus test on proprietary interest was the correct law in Louisiana. The district judge explained in detail why he felt compelled to grant the summary judgment:
      MR. STEVENS (counsel for Plaintiffs): I would like this Court to rule that the motions for summary judgment by the defendants based strictly on the proprietary interest rule is denied because proprietary interest is not the law of the Louisiana Supreme Court. In a products liability case, which must apply a duty/risk analysis under controlling jurisprudence, it is particularly foreseeable that these folks would be injured, therefore, they are within the scope of the duty of this defendant not to negligently kill the crawfish crop that these folks spent 30 years helping to develop....
      THE COURT: Then let me state this for the record. I agree with that statement. However, if I do that, I'm going to get reversed by the Fifth Circuit. I agree with it. I agree with everything you had to say.
      I would also recommend to the Fifth Circuit, when you take your appeal, that you ask them to certify this to the Supreme Court and they can get a final ruling on this issue.

        I agree with everything you have to say. I agree with all of it. I agree with Judge Hebert.
      MR. STEVENS: The question is as a matter of law what is the law of the Louisiana Supreme Court? Is it duty/risk analysis or is it proprietary interest? And—
      THE COURT: I think if I rule your way, I’m going to get reversed. I'm inviting you to take it to the Fifth Circuit. My opinion is that you’re absolutely correct. I do think they have a proprietary interest.
      MR. STEVENS: Well, then—
      THE COURT: Listen to me, Mr. Stevens.
      MR. STEVENS: I'm sorry.
      THE COURT: You know, I'm going to rule against you. What I’m trying to do is give you some information so that when you take it up, you can say, you know. Judge Haik did this because he got slapped on the wrist by the Court pertaining to Taira Lynn. And I think he was wrong in doing that because that was a maritime case and this belongs to Louisiana — this is a Louisiana driven cause of action, not a maritime driven cause of action. Therefore, I think Judge Haik is wrong. Okay?
      So do that, Mr. Stevens. Do that

      . We are cognizant that the Supreme Court denied writs in Phillips I. However, even though writs were denied, there was, of course, no discussion by the Supreme Court explaining the reasons for the writ denial. In contrast, we have the Supreme Court opinion in PPG Industries, which as Justice Dennis later noted in 9 to 5 Fashions, 538 So.2d at 234, "abrogated] the rule that flatly prohibited recovery for intangible economic loss produced by negligent conduct." We choose this day to follow the express dictates of PPG Industries rather than the implied message of a writ denial in Phillips I.

      . Justice Calogero dissented, not because of the implementation of a duty-risk analysis, but rather because he disagreed with the majority's determination that PPG's economic loss, from added fuel cost, was not a risk encompassed within the duty not to negligently injure Texaco’s pipelines.


source: Caselaw Access Project

author: GENOVESE, Judge. PETERS, J.,

license: Public Domain

text:
    STATE of Louisiana DEPT. OF CHILDREN AND FAMILY SERVICES CHILD SUPPORT ENFORCEMENT v. Sonya Y. SEAMAN.
    No. 11-1366.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.
    Alfred B. Shapiro, Shapiro & Shapiro, L.L.C., Baton Rouge, LA, for Defendant/Appellant, Sonya Reeder Seaman.

      George L. Celles IV, Assistant District Attorney, Natchitoches, LA, for Appellee, State of Louisiana.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

pin this child support case, Defendant, Sonya R. Seaman, was ordered to pay $756.00 in child support for her three minor children. She appeals the trial court’s determination that she was voluntarily unemployed or underemployed in calculating her child support obligation. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The present case involves the child support obligation calculated following the divorce of Charles Seaman and Sonya Seaman. The Louisiana Department of Social Services (DSS) filed a Rule and Order to Show Cause on March 29, 2011, why Ms. Seaman “should not be ordered to pay a reasonable amount as child support for the minor children: HAILEY SEAMAN, born 10/15/2000; and ERIN and JANA SEAMAN, twins[,] born 11/19/2003.” The matter was heard and judgment was rendered on May 31, 2011.

The trial court found Ms. Seaman to be voluntarily unemployed or underemployed and, using the most recently published Louisiana Occupational Employment Wage Survey, determined that her income earning potential was $3,425.00 per month. Accordingly, after imputing this income earning potential to her, Ms. Seaman was ordered to pay child support in the amount of $756.00 per month for support of the three minor children. Ms. Seaman appeals, and we affirm.

ASSIGNMENT OF ERROR

In her sole assignment of error, Ms. Seaman asserts that the trial court erred in ruling that she was voluntarily unemployed or underemployed and in using her earning potential in the calculation of child support.

laLAW AND DISCUSSION

The applicable standard of review was recently set forth by this court in State v. Wiltz, 11-728, p. 3 (La.App. 3 Cir. 11/2/11), 77 So.3d 1073, 1074-75 (quoting Aguillard v. Aguillard, 08-1131, p. 6 (La.App. 1 Cir. 12/23/08), 9 So.3d 183, 187):

Voluntary unemployment or underemployment is a fact-driven consideration. The trial court has wide discretion in determining the credibility of witnesses, and its factual determinations will not be disturbed on appeal absent a showing of manifest error. Whether a spouse is in good faith in ending or reducing his or her income is a factual determination which will not be disturbed absent manifest error. Romanowski [v. Romanowski], [03-124 (La.App. 1 Cir. 2/23/04), 873 So.2d 656]. We cannot substitute our findings for the reasonable factual findings of the trial court. See Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882-83 (La.1993).

For the purpose of determining child support, La.R.S. 9:315(0(5) (emphasis added) defines “income” as:

(a) Actual gross income of a party, if the party is employed to full capacity; or
(b) Potential income of a party, if the party is voluntarily unemployed or underemployed. A party shall not be deemed voluntarily unemployed or underemployed if he or she is absolutely unemployable or incapable of being employed, or if the unemployment or underemployment results through no fault or neglect of the party.
(c) The court may also consider as income the benefits a party derives from expense-sharing or other sources; however, in determining the benefits of expense-sharing, the court shall not consider the income of another spouse, regardless of the legal regime under which the remarriage exists, except to the extent that such income is used directly to reduce the cost of a party’s actual expenses.

Louisiana Revised Statutes 9:315.11(A) provides that:

If a party is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of income earning potential, unless the party is physically or mentally incapacitated, or is caring for a child of the parties under the age of five years. In determining the party’s income earning potential, the court may consider the most recently published Louisiana Occupational Employment Wage Survey.

|sThe issue before the trial court was whether Ms. Seaman was voluntarily unemployed or underemployed. The burden was on Ms. Seaman to show that she was not voluntarily unemployed or underemployed. The issue before this court is whether the trial court was manifestly erroneous in its judgment. See State, Dep’t of Social Services v. Swords, 08-580 (La.App. 3 Cir. 11/5/08), 996 So.2d 1267 (citing McDaniel v. McDaniel, 03-1763 (La.App. 3 Cir. 5/19/04), 878 So.2d 686). In this appeal, Ms. Seaman argues “[tjhere is no reasonable basis whatsoever for the trial court applying [La.R.S.] 9:315.11 and imputing income to [her]. Nor is there any evidentiary basis for such.”

Ms. Seaman testified that she obtained a bachelors degree of arts in elementary education from Northwestern State University in 1991. She was an elementary school teacher until 1997. Thereafter, Ms. Seaman either worked in Mr. Seaman’s law office or in one of the liquor stores they owned until the parties divorced. As a result of the divorce settlement, Ms. Seaman became the sole owner of a liquor store which she ultimately sold. Thereafter, Ms. Seaman eventually moved out of Louisiana, and the three minor children remained in the custody of Mr. Seaman.

Ms. Seaman testified that she worked for a short time in Montana and then moved to Colorado where she worked at various times as a commission based photographer and at a UPS store, as a ski instructor, and at the Vail Game Creek Club for $10.00 an hour. According to Ms. Seaman, she moved to Colorado because she had no place to live here in Louisiana, and she had a friend who offered her a place to live in Colorado. Ms. Seaman claimed that she was initially unable to obtain a teacher’s certificate in Colorado, which would have enabled her to get a teaching job, because she had criminal charges pending against her in Louisiana. Ultimately, she did obtain a Colorado teacher’s certificate in September 14of 2010. According to Ms. Seaman, she has applied for numerous teaching jobs in Colorado since 2009, but “through no fault of her own[,]” she was unsuccessful in getting a job. Ms. Seaman testified that she had recently enrolled in an online course to earn her master’s degree in education, which she believed would increase her chances of getting a job in Colorado.

The State offered the testimony of Elaine Hicks, Director of the District Attorney’s Child Support Department in the Tenth Judicial District. Ms. Hicks testified that the parties’ child support obligations were calculated using a gross monthly income of $15,139.86 for Mr. Seaman, and the earning potential of a teacher in Louisiana for Ms. Seaman based upon her education level. Statistics from Louisiana’s Department of Labor were used to ascertain that the average monthly income of Ms. Seaman, were she employed in Louisiana as a teacher, would be $3,425.00.

Considering the record before us, we find sufficient evidence supportive of the trial court’s determination that Ms. Seaman is voluntarily unemployed or underemployed. Ms. Seaman offered only her own testimony and no competent, documentary or other corroborating evidence to support her assertion that she is not voluntarily unemployed or underemployed through no fault or neglect of her own. Considering this was a factual determination and credibility call by the trial court, we find no manifest error in the trial court’s ruling that Ms. Seaman is voluntarily unemployed or underemployed nor its determination of her income earning potential as authorized by La.R.S. 9:315.11. Ms. Seaman’s assignment of trial court error is without merit.

1,DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Defendant/Appellant, Sonya R. Seaman, is to bear all costs of this appeal.

AFFIRMED.

PETERS, J., dissents and assigns written reasons.

PETERS, J.,

dissenting.

U respectfully disagree with the majority’s affirmation of the trial court’s judgment ordering Mrs. Seaman to pay a $756.00 monthly child support obligation. I find that not only is the evidence insufficient to establish that Mrs. Seaman was underemployed, it is also insufficient to establish Mr. Seaman’s income for child support purposes.

Issue of Voluntary Underemployment

In this case, the record establishes that Mrs. Seaman has a Bachelor of Arts degree in Elementary Education, having graduated from Northwestern State University in 1991. She taught until 1997, when she left the profession to marry Mr. Seaman, a practicing Natchitoches, Louisiana lawyer. From that time until the parties separated, her only employment was in her husband’s law office or in his various business investments.

As pointed out by the majority, La.R.S. 9:315(0(5) provides that “[a] party shall not be deemed voluntarily unemployed or underemployed if he or she is absolutely unemployable or incapable of being employed, or if the unemployment or underemployment results through no fault or neglect of the party.” (Emphasis added). Additionally, the burden of proving underemployment lies with the party | ^claiming that fact — in this case the state. See Arrington v. Arrington, 41,012 (La.App. 2 Cir. 4/26/06), 930 So.2d 1068.

The state’s evidence concerning Mrs. Seaman’s unemployment status consists entirely of the testimony of Ms. Hicks, who could only testify that Mrs. Seaman informed her in a telephone conversation of her problems in obtaining a teaching position in Colorado, and that she followed up that conversation with a telephone call to the Eagle County School District (the county where Mrs. Seaman was then residing). With regard to that conversation, Ms. Hicks testified only that she obtained information concerning the pay scale of a Colorado teacher. Additionally, Ms. Hicks based all of her income assertions on Mrs. Seaman obtaining employment in the Shreveport, Louisiana area. However, the state presented no evidence to suggest that a position would be available for a teacher who had been out of the classroom for fourteen years, nor did it establish the Mrs. Seaman had maintained her certification in Louisiana such that she would even qualify for a teaching position.

The uncontested evidence, concerning Mrs. Seaman’s efforts in obtaining employment after leaving Louisiana, is that she worked numerous jobs and appears to have seldom been unemployed. She made every effort to find a teaching position in Colorado, but was denied certification because she had a pending felony charge in Louisiana which arose from the contentious divorce proceedings. When that charge was finally dismissed, she did obtain a Colorado teaching |scertifieate, and, at the time of trial of this matter, was enrolled in online courses to earn a master’s degree in education and better increase her chances of obtaining a teaching position in Colorado. She only obtained her Colorado teaching certificate in September of 2010. Obviously, by that time the 2010-11 school year had begun and teacher quotas were filled. Trial on this matter was held before the 2011-12 opportunities arose for her.

In my opinion, the state never met its burden of proving that Mrs. Seaman was voluntarily underemployed. In fact, the evidence clearly established that Mrs. Seaman was underemployed through no fault or neglect of her own. La.R.S. 9:315(C)(5). To conclude otherwise would be to conclude that although Mrs. Seaman worked long hours at menial jobs averaging $10.00 per hour, she did so to avoid the increase in child support payments that would be effected by her taking a teaching position. “Voluntary unemployment or underemployment for purposes of calculating child support is a question of good faith on the obligor-spouse.” Martello v. Martello, 06-594, p. 13 (La.App. 1 Cir. 3/23/07), 960 So.2d 186, 197. I find nothing to suggest that Mrs. Seaman’s situation was based on anything other than her good faith in attempting to find suitable employment. Furthermore, there is no Louisiana law requiring Mrs. Seaman to more from her resident state to another state in order to seek employment. See Lauve v. Lauve, 08-76 (La.App. 4 Cir. 8/20/08), 6 So.3d 184. The trial court should have evaluated Mrs. Seaman’s child support obligation based on a $10.00 per hour income.

Issue of Mr. Seaman’s Income for Support Purposes

Next, the trial court erred in setting Mr. Seaman’s monthly income for child support purposes based solely on the state’s assertion of the content of part of his 2010 Federal tax return. Mr. Seaman testified that he suffered substantial business 14losses in 2008 and 2009, and that he anticipated a significant loss when he sold certain Montana property later in 2011. Given the fact that Mr. Seaman was still involved in business ventures outside his law practice in 2010, it stands to reason that the 2010 Federal tax return would address that financial involvement.

Despite the fact that his continuing business activity outside the practice of law clearly affected the amount available for child support, the state’s counsel made statements throughout the proceedings concerning his interpretation of Mr. Seaman’s tax returns. In the most significant of these statements to the trial court, he suggested that “in [his] opinion” only one portion of the 2010 Federal tax return should be considered in setting the child support because everything else was irrelevant. That portion of the 2010 Federal tax return involved only the income derived by Mr. Seaman from his law practice. The state’s counsel initially set Mr. Seaman’s income at $11,840.00 per month —an amount significantly better than the resulting income from the 2008 and 2009 Federal tax returns. The trial court accepted counsel’s assertion as evidence in ultimately setting the amount of support due from Mrs. Seaman.

What makes the use of the 2010 Federal tax return, as evidence of Mr. Seaman’s financial situation for child support purposes, unsupportable is that not only did Mrs. Seaman not have a copy of the return, but she was denied access to the return during trial. When the state’s counsel made his assertions to the trial court, Mrs. Seaman requested a copy to review. The state’s counsel refused to provide her a copy citing some unspecified federal prohibition against sharing the information. Mr. Seaman expressed his agreement with the state’s position, and | swhen Mrs. Seaman requested that the trial court allow her a copy, the trial court responded that it denied her request. Thus, a portion of her former husband’s 2010 Federal tax return was used against Mrs. Seaman, not through Mr. Seaman’s testimony, but through assertions made by the state’s counsel that nothing else contained in the return was relevant to the proceedings before the trial court.

The importance of Mrs. Seaman’s inability to present any sort of a defense to the content of the tax return was highlighted by Ms. Hicks’ comments to the state’s counsel to the effect that the return also reflected Mr. Seaman’s receipt of social security benefits for himself and the two children in 2010 — something that the state’s counsel had overlooked or had determined to be irrelevant.

This error was compounded when Ms. Hicks attempted to recalculate the worksheet using this information. She used the social security information to increase Mr. Seaman’s monthly income from $11,839.85 to $15,138.83. This had the effect of increasing the total child support obligation from $3,856.47 to $4,097.64 and of decreasing Mrs. Seaman’s obligation from $865.39 to $756.00. The problem is that while she increased the monthly income by the amount Mr. Seaman received for himself in social security benefits, she did not decrease the combined support obligation by the amount Mr. Seaman was receiving for that very purpose. Assuming everything else to be correct, that amount should have been reduced by over $1,000.00. Also, with regard to the worksheet, in her testimony Ms. Hicks also volunteered that Mr. Seaman was paying $413.65 in health insurance benefits and $811.25 so that the children could attend a private | (¡school. There was no evidence from Mr. Seaman that he paid these amounts, but more important, there was no evidence presented of a special need for private school attendance. See State, Dep’t of Social Services v. Swords, 08-580 (La.App. 8 Cir. 11/5/08), 996 So.2d 1267.

Other Issues

Although I believe the matter should be reversed and remanded on the two primary issues previously discussed, there are other issues that require attention by the trial court on remand. It is obvious that the matter before us overlaps with the civil litigation which apparently is still going on between Mr. and Mrs. Seaman. Although the state filed a separate action to set child support, it did so by rule to show cause rather than petition. This resulted in the trial court falling into error in setting the effective date of child support payments. The state did not file its action until March 29, 2010, and trial on the rule was held June 20, 2011, Still, the trial court made its support judgment retroactive to October of 2010. This was error. Additionally, October of 2010 is apparently the date the civil pleadings first addressed the support issue and certainly raises lis pendens issues.

The importance of requiring the state to prove its claims against Mrs. Seaman is found in the enabling statute authorizing the state’s cause of action in matters similar to the one now before us. In its initial pleading, the state asserted that it was seeking the setting of a child support obligation as well as an income assignment order under La.R.S. 46:236.3. As described in the provisions of law that follow that statute in Title 46 of the Revised Statutes, the obligations imposed on Mrs. Seaman after judgment are much more severe than in the civil process, and border on quasi-criminal penalties.

|7I would reverse the entire judgment and remand it for a hearing wherein the parties could present competent evidence upon which the trial court could rule.

      . Though the Rule and Order to Show Cause instituting this proceeding listed Defendant’s middle initial as "Y.,” this court notes that the judgment and briefs filed herein list Defendant's middle initial as "R.”

      . The majority suggests that Mrs. Seaman has the burden of proof.

      . It is difficult to believe that Ms. Hicks made no inquiries concerning employment opportunities in Colorado since Mrs. Seaman’s employment opportunities is the basic issue in this litigation. However, she did not share that information with the trial court.

      . Mrs. Seaman presented evidence of twenty-five applications for teaching positions in Colorado.

      . Counsel for the state had to later modify this amount by increasing it to $15,138.83 when Ms. Hicks pointed out to him that Mr. Seaman was also receiving social security benefits for himself and the two children.

      . It is significant to note that while the state refused to provide Mrs. Seaman with a copy of her former husband’s 2010 Federal tax return, one of the items of evidence sought by the state in its original pleading was Mrs. Seaman’s 2010 Federal tax return.

      . Although Mr. Seaman testified concerning some discovery issues, he did not testify con-ceming his financial situation.


author: ROSEMARY LEDET, Judge.

text:
    Michael PARKER C/W Bryce Williams and Peter Reyes v. STATE of Louisiana.
    No. 2011-CA-1475.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 2012.
    Rehearing Denied March 28, 2012.

      Leo J. Palazzo, David Daniel Bravo, Renee L. Swanson, Tessa L. Cluck, Palazzo Law Firm, Gretna, LA, for Plaintiffs/Appellants.
    Lena D. Giangrosso, Henry St. Paul Provosty, Keelie M. Broom, Provosty & Gankendorff, L.L.C., New Orleans, LA, James D. “Buddy” Caldwell, Attorney General, Baton Rouge, LA, for Defen-dani/Appellee.
    (Court composed of Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.

11 This is a workers’ compensation case. The sole issue presented is whether the workers’ compensation judge (“WCJ”) erred in finding the appellants, three National Guardsmen (the “Guardsmen”) who were injured while on active duty in New Orleans after Hurricane Katrina, lack a right of action under La. R.S. 23:1211 and thus granting summary judgment in favor of the defendant, the State of Louisiana. Finding the Guardsmen have a right of action, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

In anticipation of the imminent landfall of Hurricane Katrina, Governor Kathleen Babineaux Blanco issued a proclamation declaring a state of emergency on August 26, 2005. In two subsequent proclamations, Governor Blanco extended the state of emergency to November 24, 2005. At Governor Blanco’s request, the National Guard was ordered into the New Orleans area. Initially, the National Guard was activated under state active duty. However, at Governor Blanco’s ^request, Gordon England, acting Secretary of the Army and Acting Secretary of the Air Force, by memorandum dated September 7, 2005, approved “[federal funding for use of the National Guard in Title 32 U.S.Code status to support Hurricane Katrina disaster relief efforts retroactive to August 29, 2005.”

During the state of emergency (on November 6, 2005), the Guardsmen were injured in a motor vehicle accident in New Orleans. The accident occurred when the HMMWV in which the Guardsmen were riding collided with another vehicle. The driver of the other vehicle died at the scene; the Guardsmen suffered personal injuries. The Guardsmen applied for and received federal benefits for the injuries they sustained in the accident. In August 2009, the Guardsmen each filed a disputed claim for compensation with the Louisiana Department of Labor, Office of Workers’ Compensation seeking special compensation benefits pursuant to La. R.S. 28:1211. In response, the State filed a peremptory exception of no right of action. In March 2010, the WCJ consolidated the Guardsmen’s actions and denied the State’s exception of no right of action. This court denied the State’s writ applications. Thereafter, the State filed a motion for summary judgment, which the WCJ granted. This appeal followed.

DISCUSSION

The standard of review in this case is de novo. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750 (holding that a | %de novo standard applies in reviewing a trial court’s decision granting summary judgment); Fortier v. Hughes, 09-0180, p. 2 (La.App. 4 Cir. 6/17/09), 15 So.3d 1185, 1186 (holding that “[pjeremptory exceptions raising the objection of no right of action are reviewed de novo on appeal as they involve questions of law.”)

The sole issue on appeal is whether the WCJ erred in granting the State’s motion for summary judgment on the basis that the Guardsmen lack a right of action under La. R.S. 23:1211. At the time of the accident in question, La. R.S. 23:1211 provided as follows:

A, Every member of the National Guard who is accidentally injured, or his dependents if he is accidentally killed, while on active duty during a state of emergency declared by the governor and for the duration of such emergency as declared by the governor, shall be compensated by the state in accordance with the workers’ compensation law, including but not limited to such medical, surgical and hospital services and medicines and such disability and death benefits as are authorized by said workers’ compensation law.
B. No compensation shall be paid by the state for injury or death occurring while in the service of the United States of America or while going to or returning from this service.
C. No compensation shall be paid unless the injury or death arose out of and in the course of service while on active duty during a state of emergency declared by the governor and only for the duration thereof and for no other kind of service whatsoever. Before any claim is certified for payment, proof that the applicant is entitled to payment shall be made in accordance with regulations prescribed by the adjutant general....
D. Except as provided in Subsection C hereof, the provisions of this section and of no other law shall govern the compensation benefits payable to members of the national guard.

|/The Guardsmen contend that they meet all the requirements set forth in La. R.S. 28:1211: they were injured while on active duty during a state of emergency declared by the governor. The Guardsmen point out that the Legislature, in enacting La. R.S. 23:1211, did not qualify the receipt of benefits on either a lack of Title 32 status or a lack of receipt of federal benefits. Citing McGee v. State, 502 So.2d 121 (La.App. 4 Cir.1986), the Guardsmen further point out that this court expressly declined to read into La. R.S. 23:1211 a qualification based on a lack of receipt of federal benefits. The Guardsmen thus contend that the trial court erred in finding they lack a right of action.

The State counters that pursuant to La. R.S. 23:1211(B), the Guardsmen lack a right of action because they were injured “while in the service of the United States of America.” According to the State, the Guardsmen lost their state service status when they were called into federal service under federal law, Title 32. Given that the Guardsmen were injured while on federal-Title 32 duty, were paid federal benefits, and were federal employees, the State contends that the Guardsmen are not entitled to state workers’ compensation benefits. In support, the State cites 10 U.S.C. § 12602(b)(2), which defines active duty-Title 32 status as federal service. The State also cites the Federal Tort Claims Act, 28 U.S.C.A. § 2671 (“FTCA”), which defines a National Guard member in Title 32 status as a federal employee. The State also cites La. R.S. 29:23.1 and Wells v. State Through Military Dep’t, 524 So.2d 778 (La.App. 3rd Cir.1988), as recognizing this distinction.

The State submits that it is illogical to classify a National Guard member serving in Title 32 status as a federal employee subject to the FTCA when a third party is injured, but as a state employee eligible for state workers’ compensation benefits when the National Guard’s member himself or herself is injured. According to the State, the most important proof it submitted in support of its motion for summary judgment was the deposition testimony of one of the Guardsmen (Mr. Williams) that the Guardsmen were “on federal orders and we were actually commissioned to carry weapons, wear body armor.” The State thus contends that the trial court correctly found the Guardsmen lack a right of action under La. R.S. 23:1211.

In order to have a right of action under the applicable law (La. R.S. 23:1211 as it read in November 2005), the Guardsmen were required to prove five factors: (1) that they were national guard members, (2) who were accidentally injured, (3) while on active duty, (4) during a state of emergency declared by the governor, and (5) while not “in the service of the United States of America or going to or returning from this service.” For purposes of the State’s motion for summary judgment the only element disputed was the fifth one: whether the Guardsmen were in federal service.

Although a National Guard member in Title 32 status is defined by statute as a federal employee for the purpose of receiving federal benefits and for determining FTCA coverage, these statutory definitions are inapposite to the issue presented in this case of whether the Guardsmen were in state (not federal) service and thus entitled to state workers’ compensation benefits. The issue is one of state |,;law regarding the meaning of the state workers’ compensation statute. Because this is a legal issue, the State’s reliance on the deposition testimony of one of the Guardsmen as establishing their federal service status is misplaced.

It is undisputed that the Guardsmen were serving in Title 32 status at the time of the accident. Title 32 status is one of three legally distinct statuses under which a National Guard member may be called into duty. The other two statuses are state active duty and federal Title 10 status. Explaining these three statuses in his report regarding the response to Hurricane Katrina, Lawrence Kapp, Specialist in National Defense; Foreign Affairs, Defense and Trade Division, stated:

In response to disasters and civil disorders, [state] governors can order National Guard personnel to perform full-time duty, commonly referred to as “state active duty.” In this state capacity, National Guard personnel operate under the control of their governor, are paid according to state law, can perform typical disaster relief tasks and are not subject to the restrictions of the Posse Comitatus Act (that is, they can perform law enforcement functions). National Guard personnel called to assist with disaster relief operations for Hurricane Katrina were originally called to duty in a state active duty status by their respective governors....
Another way in which National Guard personnel can be activated and remain under the control of their governor is under the authority of 32 U.S.C. 502(f). This provision of federal law provides that “a member of the National Guard may ... without his consent, but with the pay and allowances provided by law ... be ordered to perform training or other duty in addition to [inactive duty for training or annual training].” The advantage of using this authority is that the National Guard personnel called will receive federal pay and benefits and are entitled to certain legal protections as though they were in federal service, but they remain under the control of their governor and are therefore not subject to the restrictions of the Posse Comita-tus Act....
Shortly after Katrina, [a request was granted on September 7, 2005,] to approve the retroactive transfer of all National Guard personnel participating in Katrina-related disaster operations from state active duty to duty under Title 32. The purpose of this request was to equalize pay and benefits for all National Guard personnel rather than having their compensation based on disparate state and territorial laws....
National Guard personnel can also be activated in a purely federal status. For example, under 10 U.S.C. § 12304, the President can call up to 200,000 |7members of the National Guard (and other reserve components) into federal service if he determines it necessary “to augment active forces for any operational mission.” In this federal status, National Guard personnel operate under the control of the President, receive federal pay and benefits, and can perform typical disaster relief tasks. However, in this status they generally are subject to the restriction of the Posse Comitatus Act: that is, they cannot perform law enforcement functions unless expressly authorized by the Constitution or an act of Congress.

CRS Report for Congress: Hurricane Katrina: DOD Disaster Response, (9/9/05) at pp. 6-9 (available at http:llwww.fas.org/sgp/ crs/natsec/RLHI3095.pdf)(Eimph&sis supplied).

At the time of the accident, the Guardsmen were serving in Title 32 status under the command of the Governor of Louisiana. The dispositive issue is whether Title 32 status is federal service, ie., “in the service of the United States of America,” under La. R.S. 23:1211(B). The phrase “in the service of the United States of Amer-ica” has been in La. R.S. 23:1211 since it was originally enacted in 1968 and appeared in former La. R.S. 29:39 (1950), which La. R.S. 23:1211 replaced. This phrase, however, is not defined in the statute. To determine the meaning of this phrase an analysis of the constitutional and statutory background of the National Guard is required.

The National Guard is a “hybrid” organization. United States v. Hutchings, 127 F.3d 1255, 1258 (10th Cir.1997). It includes “two overlapping but distinct organizations” — the National Guard of the individual States and the National Guard of the United States of America. Perpich v. Department of Defense, 496 U.S. 334, 345, 110 S.Ct. 2418, 110 L.Ed.2d 312 (1990). Explaining the National Guard’s dual enlistment requirement, the Supreme Court in Perpich noted that “[s]ince 1933 all persons who have enlisted in a State National Guard unit have simultaneously enlisted in the National Guard of the United States.” Id. Citing various provisions of Title 10 |sof the United States Code, the Supreme Court further noted that “Congress has by distinct statutes provided for activating the National Guard of the United States and for calling forth the militia, including the National Guards of the various States.” Id. at 350 n. 21, 110 S.Ct. 2418. The Supreme Court still further noted that during the period of active federal duty, “[t]he state affiliation is suspended in favor of an entirely federal affiliation.” Id. at 349, 110 S.Ct. 2418.

National Guard members are not in the service of the United States “unless and until ordered to active duty” or federalized. Clark v. United States, 322 F.3d 1358, 1366 (Fed.Cir.2003)(quoting Perpich, 496 U.S. at 345, 110 S.Ct. 2418). “[A] National Guard member is only on federal ‘active duty’ as a member of the United States Army when called to federal service pursuant to Title 10.” Baccus v. N.C. Dep’t. of Crime Control and Public Safety, 195 N.C.App. 1, 13, 671 S.E.2d 37, 44 (2009). Not until “that triggering event occurs does a Guardsman become a part of the Army and lose his status as a state serviceman.” Gilbert v. United States, 165 F.3d 470, 473 (6th Cir.1999) (quoting United States v. Hutchings, 127 F.3d 1255, 1258 (10th Cir.1997)).

To demonstrate the basic concept that a National Guard member is in state service and retains his or her state service status except when formally called into federal service, the Supreme Court in Perpich provided the following “hat” analogy: all National Guard members “must keep three hats in their closets — a civilian hat, a state militia hat, and an army hat — only one of which is worn at any particular time.” Perpich, 496 U.S. at 348, 110 S.Ct. 2418. The issue of whether a National Guard member is in federal or state service status turns on “which ‘hat’ (state militia or Army) is being worn.” Steven B. Rich, The National Guard, Drug Interdiction | c,and Counterdrug Activities and Posse Comitatus: The Meaning and Implications of "in Federal Service,” 1994 Army Law. 16, 40 (hereinafter “Rich”).

In Gilbert, supra, the court addressed the issue of whether the use of National Guard members serving in Title 32 status as part of an anti-drug task force violated the Posse Comitatus Act. The Act prohibits the use of the federal army to perform civil law enforcement functions. Because the Act only applies to National Guard members called into federal service, the dispositive issue in Gilbert was whether the National Guard members were in federal service. The criminal defendant argued that since the National Guard members were serving in full-time capacity under Title 32 and were being compensated with federal funds they were in federal service. Rejecting that argument, the court reasoned:

These circumstances are immaterial: “[t]he issue of status depends on command and control and not on whether: state or federal benefits apply; state or federal funds are being used; the authority for the duty lies in state or federal law; or any combination thereof.” Rich, supra, at 19. “Although National Guard members receive federal pay and allowances ... while performing full-time National Guard Duty,” they remain members of the state National Guard and not members on active duty in federal service with the United States Army. Id.

Gilbert, 165 F.3d at 473. The court thus held that the National Guard members were not in federal service and that the Act did not apply.

In the instant case, the State makes a similar argument that because the Guardsmen were activated under Title 32, a federal law, and received federal benefits they were in federal service. Rejecting that argument, we note, as the commentator cited in Gilbert points out, that “[although one might argue that the federal funding and resources, federal statutory and regulatory authority, and certain federal protections and benefits make the Guard a de facto federal organization, the constitutional and legal separation remains clear.” Rich, supra at [1043. While the Guardsmen were in Title 32 status, the duty they were performing was “in the capacity of the state National Guard, and this remains true regardless of resourcing by the federal government.” Id.; see also Hutchings, supra, (noting that a National Guard member’s Title 32 status demonstrates his assignment is “a state-controlled, not a federal, assignment.”)

Based on the above background, we construe the phrase “in the service of the United States” in La. R.S. 23:1211(B) to mean a National Guard member serving in a purely federal status under Title 10, i.e., wearing an “army hat.” Because the Guardsmen were not “in the service of the United States,” they have a right of action under La. R.S. 28:1211.

DECREE

For the forgoing reasons, the judgment of the workers’ compensation judge granting the State’s motion for summary judgment is reversed; and this matter is remanded for further proceedings.

REVERSED AND REMANDED

      . The appellants are Michael Parker, Peter Reyes, and Bryce Williams. A fourth National Guardsman who also filed a workers' compensation claim, Troy Serpas, did not join as an appellant in this appeal.

      . The State also filed a peremptory exception of prescription, but it withdrew that exception.

      . Parker v. State of Louisiana, 10-0578 (La.App. 4 Cir. 5/26/10)(unpub.); Williams v. State of Louisiana, 10-0579 (La.App. 4 Cir. 5/26/10)(urzpith.); Reyes v. State of Louisiana, 10-0580, (La.App. 4 Cir. 5/26n0)(unpub.); Serpas v. State, 10-C-0581 (La.App. 4 Cir. 5/26/10){unpub.). As noted elsewhere, one of the claimants, Mr. Serpas, is not a party to this appeal.

      .The general rule is that the law in effect at the time of the work-related accident governs in workers’ compensation cases. Frith v. Riverwood, Inc., 04-1086, p. 11 (La. 1/19/05), 892 So.2d 7, 14.

      . 10 U.S.C. § 12602(b)(2) provides:
      (b) For the purposes of laws providing benefits for members of the Air National Guard of the United States and their dependents and beneficiaries — ...
      (2) full-time National Guard duty performed by a member of the Air National Guard of the United States shall be considered active duty in Federal service as a Reserve of the Air Force....

      . Under the FTCA, an " '[ejmployee of the government' includes (1) officers or employees of any federal agency, members of the military or naval forces of the United States, members of the National Guard while engaged in training or duty under section 115, 316, 502, 503, 504, or 505 of title 32.” 28 USCA § 2671.


author: ROLAND L. BELSOME, Judge.

text:
    INTERSTATE REALTY MANAGEMENT COMPANY v. Ora PRICE, Darryl Price & Leonard Price.
    No. 2011-CA-1131.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 2012.
    Rehearing Denied March 28, 2012.

      James Ryan III, Timothy Taney Roni-ger, Jeffrey A. dayman, James Ryan III & Associates, LLC, New Orleans, LA, for Plaintiff/Appellee.
    Deidre K. Peterson, The Peterson Law Firm, L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   ROLAND L. BELSOME, Judge.

| iDefendants-Appellants, Ora Price, Darryl Price, and Leonard Price, appeal file judgment granting a Rule to Evict filed by Plaintiffs-Appellees. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Defendants-Appellants were residents of the Treasure Village Apartments at 3110 Edith Weston Place, Unit 29, in New Orleans, Louisiana. Pursuant to the residential lease agreement, Ora, Darryl, and Leonard Price (“the Prices”) were the only authorized tenants of the leased premises. Plaintiff-Appellee, Interstate Realty Management Company, manages the Treasure Village Apartments (“Interstate”). Interstate alleges that the Prices allowed Oneal and Leroy Price, Ora Price’s grandsons, also to reside at the leased premises, in contravention of the lease agreement.

Interstate submits that no written approval was obtained for Oneal and Leroy Price to reside in the leased premises, and that neither Oneal nor Leroy were members of the household pursuant to the lease agreement. Furthermore, Interstate asserts that Oneal and Leroy Price violated the apartment complex rules and were suspected of engaging in drug transactions and other criminal activity in the complex. | gSpecifically, on December 5, 2010, both Oneal and Leroy Price were in the Treasure Village Apartments near the leased premises when a drive-by shooting occurred. The shooting resulted in gunshot wounds to Leroy Price’s leg as well as property damage to the complex.

On December 7, 2010, Calisha Jolla, the site manager at the Treasure Village Apartments, issued a “Notice of Infraction” to Ora Price, regarding the December 5, 2010 shooting. The Notice cited the provisions of the lease agreement that had been violated and advised Ms. Price that a mandatory hearing would be held with the site manager on December 10, 2010 to discuss the shooting. Interstate asserts that at the December 10, 2010 meeting, the Price family members were combative with the office manager and were asked to leave the office, and that such behavior was also a breach of the lease agreement, which mandates that tenants cooperate with and not act abusively towards the site manager’s staff.

On January 4, 2011, Robin Maxfield, the District Manager, issued a 30-day Notice of Termination of Lease — Notice to Vacate, which notified the Prices that the lease would terminate effective February 4, 2011. The notice included reasons for the termination and advised the Prices that the Notice to Vacate could be discussed within seven days with the site manager. Interstate submits that the Prices did not request a meeting with the site manager, while the Prices maintain that they requested such a meeting.

The Prices filed suit in the United States District Court for the Eastern District of Louisiana; the suit was ultimately dismissed.

IsFoIIowing the dismissal of the Prices’ federal suit, on May 20, 2011, Interstate filed a Rule to Evict. On June 6, 2011, the Prices filed an answer and reconventional demand. After a trial on June 16, 2011, the court granted the Rule to Evict and ordered the Prices to vacate the leased premises within twenty-four hours. The Prices subsequently filed a motion for written reasons for judgment, notice of appeal, and a motion for stay pending sus-pensive appeal. The court granted the stay, set bond, and issued written reasons.

In the requested written reasons, the trial court acknowledged the lease provisions regarding the residents’ obligation to assure that no person under the residents’ control engages in any criminal activity that threatens the health, safety or right to a peaceful enjoyment of the residence; the residents’ obligation to refrain from, and to cause guests or members of the .household to cooperate with and to refrain from acting or speaking in an abusive or threatening manner towards neighbors or the Site Manager’s staff; and the residents’ obligation to ensure that guests or members of the household refrain from any criminal activity, which includes but is not limited to crimes of violence against persons or property, committed on or off residence.

With regard to the Prices’ argument that they were not afforded a formal grievance hearing before the Notice to Vacate was issued, the court relied upon testimony from Robin Maxfield, the property manager of Interstate Realty Management Company, and determined that the Prices set forth no credible evidence that a formal grievance hearing was requested by the Prices or their representative.

| ¿With regard to whether Oneal and Leroy Price actually lived at 3110 Edith Weston Place in contravention of the lease agreement, the court noted that Oneal Price’s Louisiana Identification Card, which listed 3110 Edith Weston Place, New Orleans, Louisiana as his address, had been introduced into evidence; the issue date was March 10, 2010. The court further noted that both the December 5, 2010 incident report from First Choice Security and the NOPD incident report listed Leroy Price’s address as 3110 Edith Weston Place, New Orleans, Louisiana.

With regard to the specific language contained in the lease agreement, the court cited to the lease agreement’s “One Strike Policy.” The policy provided in part:

The head(s) of household is responsible for the actions of the household members, guests and other persons under the family?s control (all of the foregoing are considered Covered Person(s)). The Manager will evict a family by judicial action for criminal activity if it determines that the covered person(s) has been engaged in criminal activity regardless of whether the Covered Person(s) has been arrested or convicted for such activity and without satisfying the standard of proof used for criminal conviction. Criminal activity is cause for eviction even in the absence of conviction or arrest, (emphasis by trial court.)

The One Strike Policy further provided:

The discovery of information regarding applicant families and resident families who have committed crimes or activities reflecting disturbance of neighbors, destruction of property, or habits that adversely affect the health, safety or welfare of others will be used by Manager in the screening of applicants for suitability of tenancy and residents for the purpose of determining continued occupancy and eviction procedures, (emphasis by trial court.)

The court also referenced testimony from Kevin Johnson, the president of First Choice Security and former NOPD officer, who confirmed that he regularly | .^encountered Oneal and Leroy Price near the leased premises at all hours of the day and night; that Oneal and Leroy Price permitted a daily stream of vehicles and unknown persons onto the leased property at all hours; that there was an ongoing inquiry by NOPD into suspected criminal activity involving Oneal and Leroy Price; that on one occasion in particular, Oneal Price fled after being stopped by the NOPD at 3110 Edith Weston Place, backed his vehicle into a First Choice Security vehicle, and was subsequently arrested; and that Oneal Price was serving jail time as a result of the incident and also had a prior drug arrest.

The trial court concluded that Oneal and Leroy Price’s unauthorized occupancy and activities in the apartment complex threatened the health, safety and right to peaceful enjoyment of the premises of the residents, in violation of the lease agreement, and granted the Rule to Evict. This appeal followed.

STANDARD OF REVIEW

Factual findings are reviewed pursuant to the manifestly erroneous or clearly wrong standard. Orleans Sheet Metal Works & Roofing, Inc. v. Rabito, 2004-0359, p. 3 (La.App. 4 Cir. 8/17/05), 916 So.2d 1143, 1146. Likewise, it is well-settled that an appellate court may not set aside a trial court’s finding of fact unless it is clearly wrong. Id. “Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” Id. (citing Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978)). Similarly, “[wjhere two permissible views of the evidence exist, the fact-finder’s choice between them Rcannot be manifestly wrong.” Id. (citing Rosell, supra at 845; Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967 (La.1985); Arceneaux, supra at 1333).

If the trial court’s factual conclusions are based on determinations regarding credibility of the witnesses, the manifest error standard demands great deference to the trial court. Rabito, 2004-0359, pp. 3-4, 916 So.2d at 1146 (citing Rosell, supra at 844). “The reviewing court must always keep in mind that if a trier of fact’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even if convinced that if it had been sitting as trier of fact, it would have weighed the evidence differently.” Rabito, supra, 2004-0359, p. 4, 916 So.2d at 1146-1147 (citing Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Housley v. Cerise, 579 So.2d 973 (La.1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990)). Accordingly, “[f]or the reviewing court, the issue to be resolved is not whether the trier of fact was wrong but whether the factfinder’s conclusions were reasonable.” Id. (citing Stobart, supra at 883; Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305; Mistich v. Volkswagen of Germany, Inc., 95-0939 (La.1/29/96), 666 So.2d 1073, 1077).

DISCUSSION

Appellants argue that the trial court erred in granting the Rule to Evict, adversely affecting Appellants’ right to occupy the property under federal law, and that the evidence adduced was insufficient to support such a ruling.

17With regard to the evidence set forth in support of the Rule to Evict, Appellants assert that Leroy Price was not a member of Ora Price’s “family composition” residing at 3110 Edith Weston Place, nor a guest under Ora Price’s control. Appellants further contest the credibility of the witnesses who testified at trial, arguing that Robin Maxfield and Kevin Johnson had no personal knowledge of the December 5, 2010 shooting incident, nor of any other allegations in the notice to vacate. Appellants further argue that the judgment below was obtained by fraud and ill practices because no bill of information was filed demonstrating that Leroy or Oneal Price committed any criminal act on December 5, 2010.

This Court has recognized that pursuant to La. C.C.P. art. 2004, “ill practices’ are defined as any improper practice or procedure which operates, even innocently, to deprive a litigant of some legal right.” Green v. Neese, 99-3223 (La.App. 4 Cir. 9/20/00), 769 So.2d 694, 696 (emphasis in original). A legal right in the context of Article 2004 is considered the opportunity to appear and assert a defense. Id. Therefore, a court must “determine whether the party seeking annulment has met the burden of showing how he was prevented or excused’ from asserting his claims or defenses.” Id. at 696-697 (citing Foret v. Terrebone, Ltd., 93-676 (La.App. 5 Cir. 1/25/94), 631 So.2d 103; State v. Turner, 97-0396 (La.App. 4 Cir. 12/23/97), 705 So.2d 293). The record in this case does not evidence that Appellants were deprived of some legal right pursuant to La. C.C.P. art. 2004.

Appellants also allege that grievance procedures were not complied with, and that no formal or informal hearing was held, despite a request. In this case, the Prices received a 30 day Notice of Termination of Lease—Notice to Vacate on Is January 4, 2011, which notified the Prices that the lease would terminate effective February 4, 2011, and that they could meet with the site manager within seven days to discuss the notice. The trial court made a factual determination that the Prices never requested a meeting or hearing beyond the one that occurred on December 10, 2010. Furthermore, Interstate did not file its Rule for Possession until May 20, 2011; thus, Appellants were plainly provided proper notice and an opportunity to be heard prior to the initiation of the eviction proceedings in compliance with Article 4702.

Considering the testimony and evidence presented at trial, we do not find that the trial court erred in granting the Rule to Evict. The court reviewed the evidence and heard the testimony and made factual conclusions and credibility determinations, which we cannot say were manifestly erroneous or clearly wrong. A review of the record demonstrates that sufficient evidence was presented to the trial court to establish that Appellants violated numerous terms of the lease agreement, particularly the provision which provided that residents must ensure that no person under a resident’s control may engage in “[a]ny criminal activity that threatens the health, safety or right to peaceful enjoyment of the residence by other residents.”

| ¡Appellants also assert that they were entitled to a suspensive appeal. Article 4735 provides as follows:

An appeal does not suspend execution of a judgment of eviction unless the defendant has answered the rule under oath, pleading an affirmative defense entitling him to retain possession of the premises, and the appeal has been applied for and the appeal bond filed within twenty-four hours after the rendition of the judgment of eviction. The amount of the suspensive appeal bond shall be determined by the court in an amount sufficient to protect the appellee against all such damage as he may sustain as a result of the appeal.

La.Code Civ. Proc. art. 4735. In this case, the Prices did not answer the Rule for Possession under oath and sign it personally. Accordingly, Appellants were not entitled to a suspensive appeal.

CONCLUSION

We cannot say that the trial court’s factual conclusion that Appellants violated the terms of the lease agreement by affecting the health, safety, or right to peaceful enjoyment of residence by the other residents is manifestly erroneous or clearly wrong. For the foregoing reasons, the trial court’s judgment granting the Rule to Evict is hereby affirmed.

AFFIRMED

      . The Treasure Village Apartments are a subsidized public housing complex.

      . The trial court found that because the basis of the Rule to Evict was for lease violations, and not non-payment of rent, the continued payment of rent did not vitiate the eviction proceeding.

      . The police report also listed the location of the shooting as 3110 Edith Weston Place.

      . The lease agreement provided that no person under a resident's control may engage in "[a]ny criminal activity that threatens the health, safety or right to peaceful enjoyment of the residence by other residents” and that the residents must also assure that no person under their control engage in "[a]ny drug-related criminal activity on the residence.”

      . Appellants also argue that the trial court committed legal error in disregarding a federal question with regard to the controversy; however, in light of the dismissal of Appellants? federal suit, we find it unnecessary to address this assignment of error. At trial, Stanley Price, Ora Price's son, testified as follows:
      THE COURT: Well, let me further go in that line of questioning, because it's one of the questions I had. The [federal] suit is on appeal. What was the decision of the district court? A. The district court said that—
      THE COURT: Was the matter dismissed or what? That's the basic question.
      A. Yeah. He dismissed it.
      THE COURT: He dismissed your claim?
      A. Said it was an eviction claim. But we filed an appeal saying that it was a federal question on the grounds of her constitutional and civil rights.

      . Appellee notes that even though Interstate allowed the Prices to be heard on December 10, 2010, it was not even required to do so under the One Strike Policy, which provides that "[f]ormal or informal hearing pursuant to the Residential Community’s grievance policy shall not be available for evictions for violent or criminal activity." (emphasis added.)

      . La.Code Civ. Proc. art. 4702 provides:
      When an owner of immovable property wishes to evict the occupant therefrom, after the purpose of the occupancy has ceased, the owner, or his agent, shall first cause a written notice to vacate the property to be delivered to the occupant.
      This notice shall allow the occupant five days from its delivery to vacate the premises.