author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Richard TUCKER and Linda Tucker v. PETROLEUM HELICOPTERS, INC.
    No. 2008-CA-1019.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 23, 2009.

      Colvin G. Norwood, Jr., Brian M. Le-compte, McGlinchey Stafford, PLLC, New Orleans, LA, for Plaintiff/Appellant Bell Helicopter Textron, Inc.
    Henry A. King, Michael L. Vincenzo, King Krebs & Jurgens, P.L.L.C., New Orleans, LA, and Steven D. Sanfelippo, Rose Walker, LLP, Dallas, TX, for Defendant/Appellee Petroleum Helicopters, Inc.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY and Judge DAVID S. GORBATY).
   JOAN BERNARD ARMSTRONG, Chief Judge.

| ,The defendant-appellant, Bell Helicopter Textron, Inc. (“Bell”), appeals a judgment in favor of the plaintiffs-appellees, Petroleum Helicopters, Inc. and its insurers, National Union Fire Insurance Company of Louisiana, Houston Casualty Company, Global Aerospace, Inc. and Certain Underwriters at Lloyds of London and Various Insurers through JLT Risk Solutions, Ltd. Aerospace, granting “the redhi-bition claim of PHI and PHI’s insurers ... in its entirety,” in the sum of $2,550,000.00 “for amounts paid to PHI for the loss of Helicopter” and $87,387.00 for search and salvage costs related to the retrieval of the Helicopter following this casualty.” PHI was also awarded $150,000.00 “representing the uninsured portion of the Helicopter” which the trial court found “had a fair market value of $2,700,000.00 immediately prior to this casualty.”

While Bell contests liability on various grounds, it does not assign as error the calculation of any of the amounts set forth in the preceding paragraph.

The plaintiffs’ claims arise out of the loss of a 14 year-old helicopter in the Gulf of Mexico in August of 2004 that PHI purchased from Bell. The helicopter was used by PHI to ferry workers to and from offshore platforms. The helicopter made a forced landing in the Gulf of Mexico when the tail rotor gearbox fractured |2and together with most of the tail rotor assembly, separated from the aircraft. Approximately two hours later, after the pilot and all passengers had been rescued, the helicopter turned over in the water. Although the helicopter was later recovered, PHI claims that the saltwater exposure rendered the helicopter a total loss.

On November 12, 2004, Richard Tucker, who had been a passenger in the helicopter, and his wife Linda Tucker, filed this suit against PHI, its pilots, and mechanics “pursuant to the General Maritime Laws of the United States of America,” asking for damages for personal injuries, past and future medical expenses, past and future lost wages and impairment of earning capacity. The Tuckers’ claims form no part of this appeal. PHI added Bell as a third-party defendant on August 25, 2005, seeking only tort indemnity for any damages it might have to pay to Tucker. Tucker amended his petition on June 18, 2006, to add a direct claim against Bell, again invoking maritime law. Later, PHI’s insurers were granted leave to intervene as PHI’s subrogees asserting a hull claim under the general maritime law. On July 26, 2007, PHI’s insurers filed an amended petition in intervention, asserting various theories of recovery, including implied warranty and redhibition.

Bell contends that the original purchase by PHI of the helicopter from Bell on March 30, 1990, as well as the subsequent purchase of certain allegedly defective replacement parts were all subject to express written waivers of warranty provisions precluding the plaintiffs’ claims for redhibition.

The original 1990 purchase agreement for the helicopter contained the following warranty provision:

JgTHIS WARRANTY IS GIVEN AND ACCEPTED IN PLACE OF (i) ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE AND (ii) ANY OBLIGATION, LIABILITY, RIGHT CLAIM OR REMEDY IN CONTRACT OR IN DELICT/TORT, INCLUDING PRODUCT LIABILITIES BASED UPON STRICT LIABILITY OR NEGLIGENCE, ACTUAL OR IMPUTED.
This warranty is the only warranty made by Seller. The remedies of Purchaser and obligations and Seller are limited to the repair or replacement of helicopter parts as provided herein. Seller excludes liability, whether as a result of a breach of contract or warranty, negligence, or strict product liability, for incidental or consequential damages, including without limitation, damage to the helicopter or other property, costs and expenses resulting from required changes or modifications to helicopter components and assemblies, changes in retirement lives and overhaul periods, and costs or expenses for commercial losses or lost profits due to loss of use or grounding of helicopter or otherwise.

Bell contends that this waiver found in the original purchase not only precluded redhibition claims in connection with the helicopter and its original component parts, but also precluded the raising of any redhibition claims as regards any replacement or component parts. Additionally, Bell argues that each purchase of subsequent replacement parts, including the purchase in 2000 of the tail rotor blades that were on the helicopter when it went down in August 19, 2004, “also included a warranty with disclaimers that mirror the warranty exclusion in the Purchase Agreement for the helicopter.” In other words, Bell makes two waiver of redhibition arguments: First, that the original purchase agreement | included a waiver with language broad enough to encompass the subsequent purchase of replacement component parts. We disagree with this argument for both legal and public policy reasons, i.e., we find that a waiver of red-hibition is ineffective as to indefinite purchases in the indefinite future. La. C.C. art. 2548 requires in pertinent part that:

The terms of the exclusion or limitation must be clear and unambiguous and must be brought to the attention of the buyer.

We find that this language requiring that the waiver be brought to the attention of the buyer necessarily implies that it must be brought to the attention of the buyer in connection with the purchase that is under attack for redhibition. It is not sufficient to bring it to the attention of the buyer in connection with some purchase in the past. In this case, the helicopter was originally purchased by PHI from Bell on March 30, 1990, more than 10 years prior to the purchase of certain replacement parts in 2000 that allegedly resulted in the loss of the helicopter on August 19, 2004. Calling this provision to the attention of PHI in 1990 does nothing to satisfy the requirement of calling it to the attention of PHI in 2000 when PHI purchased the replacement parts in 2000. Bell points to no evidence in the record showing that it reminded PHI of this waiver in 2000 and the law does not require even a sophisticated purchaser (as Bell argues PHI to be) to search back ten years in its files to review an old purchase contract to see if there are waiver or limitation of warranty provisions that may be applicable to a future purchase.

The trial court judgment also holds that: The Court specifically finds that Bell did not carry its burden of proving that PHI waived the legal warranty | ¿against red-hibitory defects in connection with its purchase of the tail rotor blades from Bell. Further, the Court finds that, pursuant to La. Civ.Code art. 2548, even if such a waiver of warranty had been established, Bell would not be entitled to enforce the waiver.

The burden is on Bell to establish the existence of an applicable and valid warranty waiver. Berney v. Rountree Olds-Cadillac Co., Inc., 33, 388 (La.App. 2 Cir. 6/21/00), 763 So.2d 799; Moses v. Walker, 98-58, p. 3 (La.App. 3 Cir. 6/17/98); 715 So.2d 596, 598. Whether there is an effective waiver of warranty is a question of fact that will not be disturbed by an appellate court in the absence of manifest error. Id. By way of analogy, see Laura’s Prods., Inc. v. 600 Conti Street, LLC, 07-819, pp. 5-6, (La.App. 4 Cir. 4/9/08), 982 So.2d 934. In order to bear its burden that the alleged waiver of warranty was effective, Bell must prove that the waiver was: (1) written in clear and unambiguous language; (2) contained in the contract; and (3) either brought to the attention of the buyer or explained to him. Boos v. Benson Jeep-Eagle Co., Inc., 98-1424 (La.App. 4 Cir. 6/24/98), 717 So.2d 661.

We can find no manifest error in the trial court’s finding that Bell “did not carry its burden of proving that PHI waived the legal warranty against redhibitory defects in connection with its purchase of the tail rotor blades from Bell.” While Bell offered copies of exemplar warranties supposedly identical to the one that was allegedly included by Bell in conjunction with the purchase of the tail rotor blades along with several hundred pages of invoices concerning spare parts transactions with PHI, none of the invoices addressed to PHI contained any warranty waiver and the exemplar forms that did contain warranty waivers were admittedly only examples and not the forms allegedly actually supplied by Bell to PHI in connection with the tail rotor blade purchase. None of Bell’s witnesses could state |fiunder oath that PHI actually received a specific warranty waiver — or whether PHI had knowledge of and agreed to be bound by any such waiver.

Bell contends that the claim for the loss of the helicopter is (1) strictly an admiralty or maritime claim (2) for economic loss only and (3) that under the Supreme Court’s decision in East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986) no claim can be brought against Bell by PHI under Louisiana state law theories of negligence or strict liability.

First, as to the second premise of Bell’s argument, that PHI’s claim for the loss of the helicopter is one for economic loss only, that is uncontested.

As to the first premise of Bell’s argument, that PHI’s claim is maritime or admiralty in nature, Bell contends that the general maritime law applies whenever the incident giving rise to the claim occurred on navigable waters (in the Gulf of Mexico in the instant case) and the activity giving rise to the incident bears a substantial relationship to a traditional maritime activity, citing Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995). As the Louisiana Supreme Court explained in Green v. Industrial Helicopters, Inc., 593 So.2d 634 (La.1992), this applies even to helicopters such as the one at issue in the instant appeal:

Generally, federal maritime jurisdiction is invoked whenever an accident occurs on the high seas and in furtherance of an activity bearing a significant relationship to a traditional maritime activity. Offshore Logistics v. Tallentire, 477 U.S. 207, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986); Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972). The United States Supreme Court has stated that although a helicopter is not a “traditional maritime conveyance”, when it is used to ferry passengers from an island to the shore or vice versa it is engaged in a function traditionally performed by waterborne vessels. Tallentire, 477 U.S. at 217, 106 S.Ct. at 2492. [Emphasis added.]

Id., at 636-637.

The Louisiana Supreme Court in Green went on to note that while the United States Constitution grants to federal district courts jurisdiction in all “cases of admiralty and maritime jurisdiction,” that state courts have concurrent jurisdiction by virtue of the “savings to suitors” clause of the Judiciary Act of 1789. Id., at 637. The Green court also explained that while a state may not deprive a person of substantial maritime rights, there are occasions when a state may supplement those rights. Id., at 643. Indeed, a state is allowed “wide scope” in this regard. Id. The Green decision next describes numerous examples of such state supplementation and concludes that they have been allowed “even, at times, when they conflicted with a rule of maritime law which did not require uniformity, citing Romero v. Inter national Term. Operat. Co., 358 U.S. 354, 373, 79 S.Ct. 468, 480-481, 3 L.Ed.2d 368 (1959). Green, at 643.

Consequently, we are compelled to find that the PHI’s redhibition claim falls within the ambit of permissible state supplementation of maritime policies as explained in Green. Therefore, regardless of whether this is a maritime case, PHI is entitled to assert Louisiana state law claims for implied warranty and redhibition.

Moreover, we find that maritime law does not exclude PHI’s redhibition claim as it is by its very nature a warranty claim and is referred to as such throughout the Civil Code articles on redhibition. La. C.C. art. 2520, 2521, 2522, 2530, and 2548.

Bell places great reliance on Petroleum Helicopters, Inc. v. Avco Corporation, 930 F.2d 389, 391-392 (5th Cir.1991), in support of its contention that |SPHI has no claim under maritime law for negligence or strict liability or products liability based on the following pronouncements from that decision:

In East River, 476 U.S. at 876, 106 S.Ct. at 2304, the Court held that “whether stated in negligence or strict Lability, no products-liability claim lies in admiralty when the only injury claimed is economic loss.” FN5 East River involved a strict products liability and negligence suit by charterers of oil transporting tankers against the manufacturer of the tankers’ turbine engines, which were damaged as a result of alleged design defects in a small engine part. The Court stated that “a manufacturer in a commercial relationship has no duty under either a negligence or strict products-liability theory to prevent a product from injuring itself.” Id. at 871, 106 S.Ct. at 2302. It reasoned that when the only damage is economic loss to the product itself, the purchaser has simply lost the benefit of its contractual bargain and should be limited to its contractual warranty remedies. Id. at 872-76,106 S.Ct. at 2302-04.FN6 FN5. It is undisputed that maritime law governs PHI’s claims under 28 U.S.C. § 1333, even though PHI asserts that diversity jurisdiction under 28 U.S.C. § 1332 may also apply.
FN6. The Court in East River pointed out that in the commercial setting in the maritime industry, parties are free to bargain for the terms of their contract, including warranties and risk allocation. 476 U.S. at 872-75, 106 S.Ct. at 2302-04. The Court also indicated that even if the parties exclude warranty remedies in their contract, they are still bound by the terms of their contract for purely economic loss and cannot seek additional remedies in tort:
Contract law, and the law of warranty in particular, is well suited to commercial controversies of the sort involved in this case because the parties may set the terms of their own agreements. The manufacturer can restrict its liability, within limits, by disclaiming warranties or limiting remedies.... In exchange, the purchaser pays less for the product. ... Since a commercial situation generally does not involve large disparities in bargaining power, ... we see no reason to intrude into the parties’ allocation of the risk.
Id. at 872-73, 106 S.Ct. at 2303 (citations omitted).

Petroleum Helicopters, Inc. v. Avco Corporation, 930 F.2d 389, 391-392 (5th Cir. 1991).

The statements quoted above in Petroleum Helicopters, Inc. v. Avco Corporation from the Supreme Court’s East River decision form the crux of Bell’s legal argument: “[WJhether stated in negligence or strict liability, no products-liability claim lies in admiralty when the only injury claimed is economic loss,” and “a manufacturer in a commercial relationship has no duty under either a negligence or strict products-liability theory to prevent a product from injuring itself.” To express it another way, Bell, in effect, argues that PHI has failed to state a claim upon which relief can be granted because it is (1) maritime in nature, (2) a claim for economic loss only and (3) under such circumstances there is no claim for negligence or strict liability or products liability. However, as stated previously, the trial court award to PHI was based on redhibition, a warranty based theory of recovery under La. C.C. art. 2520. The first paragraph of La. C.C. art. 2520 declares that: “the seller warrants [] the buyer against redhibi-tory defects, or vices, in the thing sold.”

Therefore, this Court does not see where East River or any of its progeny preclude recovery in a Louisiana court for a redhibition claim which is a warranty based claim. In fact, the cases relied upon by Bell take the position that warranty is the proper theory of recovery in such transactions as may be seen by frequent use of the term “warranty” in the language quoted above from Petroleum, Helicopters, Inc. v. Avco Corporation.

hoA claim in redhibition has been recognized as being distinctly different from a tort claim. Patin v. Thoroughbred Power Boats, Inc., 294 F.3d 640, 656 (5th Cir.La. 2002). It is well established in Louisiana law that a redhibition claim is contractual in nature. Landry v. Forest River, Inc., 06-1424, p. 5 (La.App. 3 Cir. 3/14/07), 953 So.2d 1046, 1050. It arises from a breach of a warranty of a thing sold by a seller. Id.

In Petroleum Helicopters, Inc. v. Avco Corporation, the court explained how it had applied East River in Shipco 2295, Inc. v. Avondale Shipyards, Inc., 825 F.2d 925 (5th Cir.1987), cert. denied, 485 U.S. 1007, 108 S.Ct. 1472, 99 L.Ed.2d 701 (1988). In doing so, the court found that in Shipco it was determined that “the warranty provisions of the contract between the two parties should govern the dispute.” Petroleum Helicopters, Inc. v. Avco Corporation, supra, at p. 392. Likewise, in the instant case, the plaintiffs are entitled to pursue their redhibition (warranty) claim in the courts of this State.

We find that the following language in Turbomeca v. Era Helicopters, 536 F.3d 351 (5th Cir.La.2008), seems to support PHI’s redhibition claim which is basically a warranty claim:

Thus, where a defective product malfunctions and causes damage only to itself, the rule is that a plaintiff can maintain an economic loss claim only under a warranty or contract theory of recovery.
Later, in Saratoga Fishing Co. v. J.M. Martinac & Co., 520 U.S. 875, 117 S.Ct. 1783, 138 L.Ed.2d 76 (1997), the Supreme Court explained the rationale behind the East River rule:
The Court [in East River] reasoned that the loss of the value of a product that suffers physical harm — say, a product that destroys itself by exploding — is very much like the loss of the value of a product that does not work properly or does not work at all. In all such cases, the InCourt held, “contract law, and the law of warranty in particular, is well suited” to setting the responsibilities of a seller of a product that fails to perform the function for which it was intended. Id. at 879-80, 106 S.Ct. 2295 (citations omitted). The Court instructed that “[g]iven the availability of warranties, the courts should not ask tort law to perform a job that contract law might perform better.” Id. at 880, 106 S.Ct. 2295.

Id., at pp. 354-355. The judgment by the trial court was based on warranty, that is, the warranty of Louisiana’s law of red-hibition. And, there is no proof in the record that PHI waived that warranty. Moreover, the only award made by the trial court was for economic loss pursuant to that warranty. We find that the redhi-bition warranty relied upon by the trial court supplements the maritime law in this regard, but does not conflict with it. Green v. Industrial Helicopters, Inc., supra, 593 So.2d at 636-637.

ERA Helicopters v. Bell Helicopter Tex-tron, Inc., 696 F.Supp. 1096 (E.D.La.1987), by implication supports PHI’s position as the court relied on the warranty in the contract in reaching its decision to deny recovery. In ERA Helicopters the court, applying Louisiana law, found that the written warranty had expired by its own written terms limiting it to one year or 1,000 hours, “whichever comes first,” saying:

Under Louisiana law, the words of a contract must be given their generally prevailing meaning. La.Civ.Code Ann. Art 2047.

Id., at 1099.

Therefore, following the reasoning in ERA Helicopters, we find that the trial court did not err in providing PHI with a warranty remedy, in this case the warranty called for in the law of redhibition. Moreover, as we have explained 1 ^previously in this opinion, the trial coui’t did not err in finding that PHI did not waive the redhibition warranty and we found no evidence in the record of any limitation of warranty in any way analogous to that found in ERA Helicopters.

Additionally, we note that Bell in its reply brief states that: “Bell concedes that redhibition is a contractual claim to which PHI would be entitled under East River, had it made such a claim prior to Bell’s Motion for Partial Summary Judgment.” In making this statement it appears that Bell is referring to its argument that the trial court erred in allowing PHI’s insurers to amend their petition in intervention to state a claim in redhibition. However, the trial court has broad discretion to allow such amendments, and we find no abuse of that discretion. Munster v. Bill Watson Ford, Inc., 07-0294, p. 3, FN. 3 (La.App. 4 Cir. 10/24/07); 970 So.2d 36, 39; Brown v. Associated, Ins. Consult, Inc., 95-451, 95-452, 95-453 (La.App. 1 Cir. 4/4/96); 672 So.2d 324, 330.

Finally, we find that the following colloquy between the trial judge and the various attorneys indicates that the amended complaint was tried by consent:

MR. CUNNINGHAM:
Now another thing, Your Honor, just as housekeeping. This has nothing to do with the post-trial brief. We have a Motion for Leave to file an amended complaint that was filed 10 days before trial.
We never set it for hearing, it was never ruled on. I believe it’s been tried by consent, if not — It was already in the record anyway. Could we ask the Court’s indulgence to grant leave and accept the amended complaint?
MR. NORWOOD:
As I understand the amended complaint is really to assert new theories of law and it’s not necessary to do that. The law is determined by the Court based on the facts.
L,MR. VINCENZO:
But there’s also one to add claims by PHI for $150,000.00, which only came out with evaluation which has not been contested.
THE COURT:
Well, if it was filed 10 days before trial and we discussed it, I’m going to grant it. We certainly, by implication, tried the issue. Of course, that raises the issue as to whether issue was joined. MR. NORWOOD:
Well, I don’t think it has been, Your Honor, but it is true that we tried the case by consent. It is true that the issues regarding PHI’s claim are, in fact, identical to the underwriters. And it is true that at Counsel’s request we stipulated to the evaluation of property damage. [Emphasis added.]
MR. CUNNINGHAM:
Actually, no. The stipulation was as to the insurance payment. The evaluation, which is in evidence, — and that’s part of the basis for the amended claim. The insurance company paid 2.55 million, the expert report said the value of the helicopter before the crash was 2.77 million. Upon receiving that on July 27th, we immediately filed an amended complaint asking for another $150,000.00 to be awarded to PHI.
MR. NORWOOD:
Your Honor, we did not object to the entry of the evaluation and we have no counter evaluation. So I don’t understand what the issue is. [Emphasis added.]
THE COURT:
There is no issue.
MR. CUNNINGHAM:
I just want to make sure that the Motion for Leave is granted and it’s considered a likelihood.
[ i ,THE COURT:
It will be.

The record reflects that PHI had operated the helicopter for more than fourteen years at the time of the accident. The tail rotor blades that were on the subject helicopter on August 19, 2004, were purchased by PHI in February of 2000 and originally put into service shortly afterward on a different helicopter from the one that is the subject of this appeal. Shortly before August 19, 2004 accident, the tail rotor blades were in use on another PHI helicopter that was destroyed by a lightning strike while on the runway. PHI’s mechanics removed them from that helicopter, and on November 20, 2003, installed them on the helicopter involved in the instant case.

Bell does not contend that the removal of the blade from another helicopter and its installation on the helicopter that is the subject of this litigation voided whatever warranties, if any, that may have existed regarding the blade,

PHI contends that the evidence at trial established that the Helicopter’s tail rotor assembly failed because one of the tail rotor blades separated in flight, causing a catastrophic imbalance in the tail rotor system.

PHI claims that an undetected fatigue crack in one of these rotor blades caused this incident and that the fatigue crack was attributable to latent defects of which Bell was aware or should have been aware at the time of purchase, i.e., the loss of the helicopter was due to a redhibitory vice.

Bell argues that none of the parts of the helicopter that were recovered show any sign of fretting or fatigue. The tail rotor blades themselves were never recovered.

115In a redhibitory action the plaintiff must prove by a preponderance of the evidence that the item sold contained a hidden defect before the sale which was not apparent by ordinary inspection and which rendered the thing unfit for its intended use or so imperfect that the purchaser would not have bought it had he known of the defect. Prat v. Heymann, 410 So.2d 343, 346 (La.App. 4 Cir.1982). The defect shall be presumed to have existed at the time of delivery if it appears within three days from that time. La. C.C. art. 2530. As the defect in the instant case did not appear within three days of delivery, there is no presumption that it existed at the time of delivery. Therefore, the burden is on PHI to prove the existence of the defect at the time of delivery.

Bell cites Moreno’s Inc. v. Lake Charles Catholic High Schools, Inc., 315 So.2d 660, 662 (La.1975) for the proposition that a plaintiff may prove the existence of a defect at the time of sale by either direct or indirect evidence.

Bell, as the manufacturer and seller of the tail rotor blades, is deemed as a matter of law to know of any redhibitory defect. La. C.C. art. 2545. As a manufacturer and seller deemed as a matter of law to have knowledge of any redhibitory vices, Bell is liable for any damages occasioned by the redhibitory vice.

A seller who knows that the thing he sells has a defect but omits to declare it, or a seller who declares that the thing has a quality that he knows it does not have, is liable to the buyer for the return of the price with interest from the time it was paid, for the reimbursement of the reasonable expenses occasioned by the sale and those incurred for the preservation of the thing, and also for damages and reasonable attorney fees....

Id.

|! ^Therefore, we find that the trial court, having found that a redhibitory vice existed, did not err in making the awards to PHI that it made. The trial court judgment, which included reasons for judgment within its judgment, found that:

This Court finds that the sole cause of the in-flight failure of the tail rotor assembly, leading to the forced landing and subsequent loss of the Bell Model 412 Helicopter, Serial Number 36005, Registration Number N22347 (the “Helicopter”) on August 19, 2004 was a redhi-bitory defect or vice in design and construction of the tail rotor blades of the Helicopter manufactured and sold by Bell and installed on the Helicopter. The Court further finds that PHI’s inspection and safety procedures and its operation of the Helicopter at all pertinent times were, in all respects, proper and reasonable and that PHI was without fault in connection with the in-flight failure of the tail rotor assembly, forced landing, loss of the Helicopter and injuries, if any, sustained by the passengers and crew.”

The trial court’s findings of fact are subject to manifest error review and are only reversible by this Court if found to be clearly wrong. This applies to the trial court’s finding incorporated into its judgment of “a redhibitory defect or vice in design and construction of the tail rotor blades of the Helicopter manufactured and sold by Bell and installed on the Helicopter.” The trial court also found that “PHI’s inspection and safety procedures and its operation of the Helicopter at all pertinent times were, in all respects, proper and reasonable and that PHI was without fault in connection with the in-flight failure of the tail rotor assembly ...” We find no evidence in the record to contradict this latter finding.

PHI presented evidence of failure of other such Bell tail rotor blades. Dr. Roch Shipley was qualified by the trial court as PHI’s expert professional engineer with expertise in failure analysis. His testimony supports the conclusion of the trial court concerning the failure of the tail rotor blade. After discussing a num-berjjjof possibilities he concluded that the failure that result in the forced landing of the helicopter in the water occurred in the tail rotor blade:

Just to cut to the chase, what conclusion I came to was that all of the evidence was consistent with the idea of losing a portion of a blade. And this is an area where there have been problems in the past. So if we lose a portion of the blade — the force is 16,000 pounds. If we lose a portion of the blade, let’s say 8,000 pounds, just and odd number— 8,000 pounds is roughly the weight of a fully loaded Chevy Suburban or whatever your favorite car or truck — if it’s a smaller car, may be two of them.
* * * *
So I’m pulling with 8,000 pounds and what’s happened is I’m twisting this mounting around causing the distortion of the studs, causing the distortion that we saw in the holes.... But we come around, we’ve distorted the fin, we do this cranking and then it comes around, lifts up the gearbox and the gearbox separates and departs the aircraft.

Dr. Shipley went on to testify that there was no distortion in certain gear teeth, indicating that there was no evidence of sudden stoppage or abnormal loading of the blade as the cause of the helicopter failure. Had that been the case there would be evidence of deformation of the drive shaft, of the “curvic coupling teeth” and of the gear, but there was no evidence of any of these. Dr. Shipley then testified that the way certain bolts were bent indicated that the entire gear box was rotated on its mounting in one direction, consistent with a large instantaneous overload, but inconsistent with a failure of the gear box itself. Again, this is consistent with failure of the tail rotor blade by separation of a portion of the blade. Dr. Shipley testified that once the separation occurred in the blade, it only had to rotate once or twice to cause the failure resulting in the loss of the helicopter — in other words, the failure would have been virtually instantaneous.

| lsDr. Shipley expressed his opinion about the most likely cause of the failure of the blade:

My opinion is that there was a crack in the tail rotor blade, and that crack progressed. That crack was undetectable during the normal daily inspections, as well as other inspections. It was undetectable and it grew to a critical length and on August 19th a portion of the tail rotor blade separated from the tail rotor assembly creating an imbalance which caused the loss of the entire trail rotor assembly through the fracturing of the tail rotor gearbox.

It was Dr. Shipley’s opinion that the crack would have been a fatigue crack, most likely caused by some internal corrosion and undetectable to the human eye. He also testified that the most likely cause of the blade failure was an internal defect that existed at the time of manufacture. Contributing to Dr. Shipley’s opinion was the fact that PHI’s daily inspections of the blades exceeded Bell’s specifications. Dr. Shipley also testified to a number of other factors supporting the conclusion that the defect was a manufacturing imperfection that resulted in the initiation and propagation of a fatigue crack, “something that made this blade different.”

Among Bell’s arguments in brief is the following:

The blades performed without incident on two different helicopters, for about 51 months and 3,380 flight hours. No problem existed at the time of delivery could have possibly remained hidden for that amount of use, through the vigorous inspections, re-qualifications, and multiple overhauls.

While this argument sounds very persuasive, evidence in the record permits the trial court’s implicit finding to the contrary. During the course of Dr. Shipley’s testimony, it came out that Bell’s published performance standards in terms of life for the blade was 5,000 hours and that a blade without defect could actually | ^perform for “several hundred thousand hours.” Dr. Shipley characterized the blades as having failed to meet Bell’s performance standards and that it would have been both technically and economically practical to have manufactured the blade using a process that would not have failed. Dr. Shipley also concluded that the likelihood of a crash outweighed any burdens on Bell to adopt an alternative design for the blade.

During the cross-examination of Dr. Shipley it was revealed that there had been another blade failure in which Bell’s own investigation characterized the failure as one arising out of the manufacturing process.

Based on this Court’s review of the evidence and testimony in the record, we cannot say that the trial court committed manifest error in finding that a redhibitory defect existed in the tail rotor blade at the time it was sold to PHI, and that that defect was the cause of the loss of the helicopter.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . This Court's decision is limited to indefinite purchases made in the indefinite future. We express no opinion at this time regarding the effectiveness of a waiver of warranty for a specified purchase to be made in a more clearly defined future.

      . Emphasis added.


source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    Anthony STEVISON v. CHARLES ST. DIZIER, LTD. et al.
    No. 08-887.
    Court of Appeal of Louisiana, Third Circuit.
    March 25, 2009.
    Rehearing Denied April 22, 2009.

      Harry K. Burdette, The Glenn Armentor Law Corp., Lafayette, LA, for Plaintiff/Appellant, Anthony Stevison.
    Maurice L. Tynes, Maurice L. Tynes & Associates, PLC, Lake Charles, LA, for Defendants-Appellees, Charles St. Dizier, Ltd. and Charles St. Dizier.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS and JIMMIE C. PETERS, Judges.
   COOKS, Judge.

| [Plaintiff, Anthony Stevison, appeals the trial court’s judgment granting defendant, Charles St. Dizier’s, exception of prescription and dismissing Plaintiffs legal malpractice suit. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On January 12, 2003, Plaintiff alleges he was wrongfully arrested by a Lake Charles police officer. During the arrest, Plaintiff asserts he was assaulted and battered by the officer which resulted in severe injuries. Plaintiff engaged Charles St. Dizier to represent him in seeking damages due to the wrongful arrest and battering. St. Dizier agreed to represent Plaintiff and they entered into a contingency fee agreement.

On January 12, 2004, a lawsuit was filed on Plaintiffs behalf by St. Dizier in the Fourteenth Judicial District Court naming the City of Lake Charles, John Ciaramita-ro, and Officer X as defendants. Suit was filed in the appropriate venue, but St. Dizier did not request service of process on those defendants and did not do so within the required ninety day time limit for service provided by La.R.S. 13:5107(D).

Plaintiff alleged, during the course of his lawsuit, he became frustrated with St. Dizier’s representation “due to his failure to do anything in the case and ultimately would not return any of [his] phone calls.” Plaintiff terminated St. Dizier and retained Harry K. Burdette to represent him in the matter. On January 17, 2005, Burdette sent a letter to St. Dizier advising him Plaintiff had retained his legal services to represent him in regard to the assault and battery case against the Lake Charles City Police Department. At the same time, Burdette requested a copy of Plaintiffs file from St. Dizier. Three more letters were sent to St. Dizier requesting the file, before it was finally delivered. However, according to Burdette, the file was pnot complete and was missing photographs taken of Plaintiffs injuries, which St. Dizier claimed he could not find. On August 26, 2005, Burdette requested service of process on Defendants. Defendants were ultimately served and on October 31, 2005, filed a Declinatory Exception of Insufficiency of Service of Process and Motion to Dismiss, alleging service was not done timely and requesting a dismissal of Plaintiffs petition with prejudice.

Burdette could not specifically state on which date he first read the exception filed by the City of Lake Charles. He asserted it was sometime during the Thanksgiving holidays. He noted that after reading it, he attempted to set up a meeting with Plaintiff. Eventually, Burdette met with Plaintiff on December 9, 2005, to inform him of the proceedings in his case.

Burdette contacted St. Dizier by letter on April 9, 2006 and April 26, 2006, asking St. Dizier to call him as soon as possible to discuss the exception. The April 9, 2006 letter also requested that' St. Dizier forward his legal malpractice insurance carrier information in the event the exception was granted, which would likely necessitate a legal malpractice suit. A letter was again mailed to St. Dizier on August 29, 2006. It read in pertinent part:

I sent you a letter on April 9, 2006 and April 26, 2006 requesting your input on the defendant’s Exception. As of this date, I have not received a response. After my thorough review and research, I don’t see an argument to defeat the exception. Therefore, I am making demand for you to provide me with your legal malpractice carriers information by September 5, 2006. If I do not receive this information from you by this date, I will regretfully be forced to file a malpractice claim and proceed accordingly.

Burdette was correct in his belief that the trial court would grant the exception, and Plaintiffs case against the City of Lake Charles was dismissed. Plaintiff then filed a Petition for Damages for Legal Malpractice against St. Dizier on November 30, 2006. An Exception of Prescription was filed by St. Dizier on December 21, 2006 |3claiming that Plaintiff failed to file his lawsuit for legal malpractice within one year of the date when Plaintiff knew or should have known of the malpractice. Specifically, St. Dizier claimed Plaintiff obtained imputed knowledge of the potential legal malpractice from his attorney when the City of Lake Charles exception was filed and mailed on October 31, 2005. The trial judge agreed and granted the Exception of Prescription. This appeal followed.

ANALYSIS

The time limits to file legal malpractice actions are set forth in La.R.S. 9:5605, and provide in pertinent part:

A. No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.

A straightforward reading of the statute clearly shows it sets forth two peremptive limits within which to bring a legal malpractice action, namely one year from the date of the alleged act, omission, or neglect or one year from the date of discovery, but not more than three years from the date of the alleged act, omission, or neglect. The issue in this case is whether the suit was filed within one year from the date of the discovery of the alleged act, omission or neglect.

St. Dizier argues the filing of the Decli-natory Exception of Insufficiency of Service on October 31, 2005 began the one year prescriptive period, as it should have given constructive notice of the potential legal malpractice. However, the record | ¿indicates Plaintiff did not become personally aware of the filing of this exception until he met with Burdette on December 9, 2005. Plaintiffs malpractice suit was filed on November 30, 2006, nine days prior to the lapse of one year from Plaintiffs actual discovery of the alleged act, omission or neglect by St. Dizier. Thus, Plaintiff argues his claim was timely. St. Dizier argued, and the trial court accepted, that when Burdette read the Declinatory Exception of Insufficiency of Service prior to November 30, 2005, he became aware of any potential legal malpractice committed. St. Dizier argued that under Louisiana law, the knowledge held by an attorney can be imputed to his client. Therefore, he contends the November 30, 2006 filing was not timely. Regrettably, we are forced to agree.

The jurisprudence has consistently held that “the knowledge of an attorney, actual or otherwise, is imputed to his or her client.” Andre v. Golden, 99-689, p. 8 (La.App. 5 Cir. 12/21/99), 750 So.2d 1101, 1104, writ denied,, 00-174 (La.3/17/00), 757 So.2d 643. See also: Reg’l Transit Anth. v. Levey, 595 So.2d 1255 (La.App. 4 Cir.), writ denied, 604 So.2d 996 (La.1992); Wilco March Buggies & Draglines v. XYZ Ins. Co., 520 So.2d 1292 (La.App. 5 Cir.), writ denied, 522 So.2d 1094 (La.1988); Orgeron v. Mine Safety Appliances Co., 603 F.Supp. 364 (E.D.La.1985). Although the result to Plaintiff is undeniably harsh, we are compelled by the jurisprudence to affirm the trial court’s grant of St. Dizier’s exception of prescription. Clearly, Bur-dette was alerted to St. Dizier’s potential malpractice when he read the Declinatory Exception of Insufficiency of Service of Process and Motion to Dismiss filed on October 31, 2005. Although Burdette argues he was not sure exactly when he read the exception, he stated it was sometime during the Thanksgiving holidays, which would have been prior to November 30, 2005. Therefore, the suit filed on November 30, 2006, was not timely given the imputation of Burdette’s knowledge |sto Plaintiff.

FRIVOLOUS APPEAL

St. Dizier answered the appeal and requested attorney fees for a frivolous appeal. An appeal is not automatically deemed frivolous simply because it lacks merit. La.Code Civ.P. art. 2164 is penal in nature and must be strictly construed. It provides that an appellate court may award damages for frivolous appeal when there is no serious legal question, when the appeal is taken solely for the purpose of delay, or when it is evident that appellant’s counsel does not seriously believe in the position he advocates. Gallien v. Winn Dixie, 96-832 (La.App. 3 Cir. 12/11/96), 685 So.2d 531. We do not find that the present matter meets the requirements of a frivolous appeal, and therefore we decline to award attorney fees. Further, considering the circumstances of this case, particularly noting the substandard performance of St. Dizier in representing Plaintiff, we will not reward St. Dizier by granting an award of attorney fees.

DECREE

For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed to appellant, Anthony Stevison.

AFFIRMED.

      . We note that Plaintiff may well have an action in malpractice against Burdette for his failure to timely file the malpractice action against St. Dizier.


author: PETTIGREW, J. McDONALD, J.,

text:
    BOH BROS. CONSTRUCTION CO., L.L.C. v. STATE of Louisiana, through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2008 CA 1793.
    Court of Appeal of Louisiana, First Circuit.
    March 27, 2009.
    Writ Denied June 5, 2009.

      H. Bruce Shreves, James A. Burton, and Terrence L. Brennan, New Orleans, LA, for Plaintiff-Appellee, Boh Bros. Construction Co., L.L.C.
    Cheryl L. Duvieilh, Baton Rouge, LA, for Defendant-Appellant, State of Louisiana Department of Transportation and Development.
    Before PETTIGREW, McDONALD, and HUGHES, JJ.
   PETTIGREW, J.

| ¿At all times pertinent hereto, Boh Bros. Construction Co., L.L.C. (“Boh”) and the State of Louisiana, through the Department of Transportation and Development (“DOTD”), were bound by a valid contract concerning the construction of a bridge and related improvements in Iberia Parish. In connection with its contract with DOTD, Boh entered into a purchase order contract with Manufab, Inc. (“Manu-fab”) to supply certain materials for the project, including specialized fabricated gears, bearings, and other materials. Ma-nufab obtained the materials and stored them in its warehouse in Pearlington, Mississippi. Manufab submitted an invoice for the materials to Boh, which in turn submitted an invoice to DOTD. As provided for in the contract, DOTD paid Boh for the stockpiled materials, and Boh, in turn, paid Manufab.

Thereafter, in August 2005, the storm surge created by Hurricane Katrina inundated Manufab’s warehouse in Mississippi where the materials were stored. The exposure of the materials to saltwater caused irreparable damage to some of the materials and required refabrication and/or replacement. Boh requested that DOTD pay the cost of refabrication and/or replacement of the damaged materials for the project, but DOTD refused to pay. According to intradepartmental correspondence dated February 23, 2006, this denial was “based on DOTD policy that the obligation to bear the expense of repairing damage to the work relates to materials already on the site and within the project’s right-of-way, that is, or will become a permanent part of the finished project.” In a subsequent letter to Boh, dated May 15, 2006, DOTD again advised that the requested cost was not eligible for reimbursement to the contractor or material supplier. DOTD continued as follows: “Bearings manufactured and stored at the supplier’s facility are not considered part of the work. As stated in Subsection 109.07, Payment for Stockpiled or Stored Material, DOTD is not responsible [for] such materials until incorporated into the work.”

Boh filed an action for breach of contract against DOTD on July 9, 2007. Therein, Boh sought $213,315.43, plus judicial interest, for the damages allegedly caused by Hurricane Katrina. In the alternative, Boh prayed for declaratory relief. DOTD promptly 13filed responsive pleadings. The parties then filed cross-motions for summary judgment. The motions were heard by the trial court on March 10, 2008. The trial court denied DOTD’s motion, but granted summary judgment in favor of Boh. The trial court signed a judgment on April 15, 2008, awarding Boh $213,315.43, plus judicial interest, for DOTD’s breach of contract. It is from this judgment that DOTD has appealed, arguing the trial court erred in granting summary judgment in favor of Boh. The narrow issue presented for our review is whether the contract at issue provided that DOTD was legally responsible for stockpiled materials stored off the project site, not incorporated into the work, and damaged by an “Act of God.”

In determining whether summary judgment is appropriate, appellate courts conduct a de novo review of the evidence, employing the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Henderson v. Kingpin Development Co., 2001-2115, p. 4 (La.App. 1 Cir. 8/6/03), 859 So.2d 122, 126. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966(B).

When parties are bound by a valid contract and material facts are not in conflict, the contract’s application to the case is a matter of law and summary judgment would be appropriate. Ginger Mae Financial Services, L.L.C. v. Ameribank, FSB, 2002-2492, p. 4 (La.App. 1 Cir. 9/26/03), 857 So.2d 546, 548, writ denied, 2003-2983 (La.1/16/04), 864 So.2d 634. A determination of the existence or absence of an ambiguity in a contract entails a question of law. An appellate review that is not founded upon any factual findings made at the trial court level, but rather, is based upon an independent review and analysis of the contract within the four corners of the document, is not subject to the manifest error rule of law. In such cases, appellate review is simply whether the trial court was legally correct. Claitor v. Delahoussaye, 2002-1632, p. 11 (La.App. 1 Cir. 5/28/03), 858 So.2d 469, 478, writ denied 2003-1820 (La.10/17/03), 855 So.2d 764.

| ¿Generally, legal agreements have the effect of law upon the parties, and, as they bind themselves, they shall be held to a full performance of the obligations flowing therefrom. Belle Pass Terminal, Inc. v. Jolin, Inc., 92-1544, 92-1545, p. 16 (La. App. 1 Cir. 3/11/94), 634 So.2d 466, 479, writ denied, 94-0906 (La.6/17/94), 638 So.2d 1094. In other words, a contract between the parties is the law between them, and the courts are obligated to give legal effect to such contracts according to the true intent of the parties. La. Civ. Code art.2045; Sanders v. Ashland Oil, Inc., 96-1751, p. 7 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1036, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. This intent is to be determined by the words of the contract when they are clear, explicit, and lead to no absurd consequences. La. Civ. Code art.2046; Woodrow Wilson Const. Co., Inc. v. MMR-Radon Constructors, Inc., 93-2346, p. 3 (La.App, 1 Cir. 4/8/94), 635 So.2d 758, 759, writ denied, 94-1206 (La.7/1/94), 639 So.2d 1167.

When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. Civ.Code art.2046; Belle Pass Terminal, Inc., 92-1544 at 17, 634 So.2d at 479. The rules of interpretation establish that, when a clause in a contract is clear and unambiguous, the letter of that clause should not be disregarded under the pretext of pursuing its spirit. La. Civ.Code art.2046, comment (b); Cashio v. Shoriak, 481 So.2d 1013, 1015 (La.1986); Belle Pass Terminal, Inc., 92-1544 at 17, 634 So.2d at 479.

To determine the meaning of words used in a contract, a court should give them their “generally prevailing meaning.” La. Civ.Code art.2047. If a word is susceptible of different meanings, it “must be interpreted as having the meaning that best conforms to the object of the contract.” La. Civ.Code art.2048. “A provision susceptible of different meanings must be interpreted with a meaning that renders it effective and not with one that renders it ineffective.” La. Civ.Code art. 2049. Furthermore, every “provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.” | -,La. Civ.Code art.2050. Moreover, in the interpretation of contracts, the specific controls the general. Smith v. Burton, 2004-2675, p. 6 (La.App. 1 Cir. 12/22/05), 928 So.2d 74, 79.

With these rules of contract interpretation and summary judgment practice in mind, we review de novo the provisions of the contract. As agreed to by the parties, the Louisiana Standard Specifications for Roads and Bridges, 2000 Edition (“Red Book”), comprised part of the agreement for the project in question. The following Red Book provisions set forth the parties’ intentions with respect to the issues before us.

101.03 DEFINITIONS.
Materials. Any substances used in the work.
Work. The furnishing of labor, materials, services, equipment and incidentals necessary for successful completion of the project and the carrying out of all obligations imposed by the contract. 107.19 CONTRACTOR’S RESPONSIBILITY FOR WORK. Until final acceptance, the contractor shall have the charge and care of the work and shall take every precaution against damage to any part thereof by action of the elements, vandalism, theft or from other cause, whether arising from execution or non-execution of the work. The contractor shall rebuild, repair, restore or pay for damages, including theft and vandalism, to the work before final acceptance and shall bear the expense thereof, except for the following:
(b) Damage due to Acts of God such as earthquake, tidal wave, tornado, hurricane or other cataclysmic phenomenon of nature or acts of governmental authorities.
109.07 PAYMENT FOR STOCKPILED OR STORED MATERIAL.
(a) General: Payment for stockpiled or stored material will be considered only for materials anticipated to be stored for periods in excess of 90 calendar days.... It shall be the contractor’s responsibility to protect the material from damage while in storage.
Title and ownership of materials for which advancements have been made by the Department shall not vest in the Department until such materials are incorporated in the work and the work accepted by the Department. The making of advancements by the Department shall not release the contractor from the responsibility for any portion thereof.

DOTD insists the trial court erred in not affording the appropriate weight to the stockpiled/stored material provision of the contract, urging that pursuant to the language contained in Section 109.07, DOTD was not vested with title or ownership of the materials Runtil such materials were incorporated into the work. DOTD further argues that moveable materials did not become the work until incorporation. Thus, DOTD asserts, it would not be responsible for' repair to the materials damaged by Hurricane Katrina because they had not yet been incorporated into the work.

Boh argues that while title and ownership did not pass to DOTD, DOTD accepted the limited, yet clearly defined risk of loss of the materials due to a hurricane. Boh urges that Section 101.03 clearly defines work as the furnishing of materials for the project. It acknowledges that Section 109.07, which allows DOTD to make advance payment for stockpiled/stored materials, does not compromise acceptance of the work or the parties’ responsibilities with respect to the risk of loss of the materials as set forth in the contract. However, Boh contends proper resolution of this matter hinges on interpretation of Section 107.19, which limits the contractor’s responsibility for the work by clearly setting forth that “the contractor shall ... restore or pay for damages ... to the work before final acceptance and shall bear the expense thereof, except for ... [djamage due to Acts of God such as ... tidal wave, ... hurricane or other cataclysmic phenomenon of nature.” Boh maintains that based on the undisputed facts of this case and this provision of the contract, the expense of restoration and/or replacement of the materials falls outside of the contractor’s scope of responsibility and, thus, falls to DOTD.

We have thoroughly reviewed the evidence in the record and the applicable law and agree with Boh’s interpretation of the contract provisions. The terms and provisions of the contract are clear and explicit. “Work” included the furnishing of materials for the project. As the contractor on the project, Boh was responsible for all damage to the work before final acceptance except for damage due to Acts of God, such as the damage caused by Hurricane Katrina. This Section of the Red Book, which is the only provision that specifically mentions Acts of God, clearly controls this situation. DOTD’s argument that the general provisions dealing with stockpiled/stored materials somehow alter the specific provisions of Section 107.19 regarding damages due to Acts of God is, as Boh aptly points out, “strained and illogical.”

17DOTD failed to bear its burden of producing evidence that there were genuine issues of material fact concerning its responsibility for the refabrication and/or replacement of the damaged materials for the project. Accordingly, summary judgment in favor of Boh was warranted. Therefore, we affirm the trial court’s April 15, 2008 judgment in accordance with Uniform Rules — Courts of Appeal, Rule 2-16.IB and assess appeal costs in the amount of $1,375.00 against DOTD.

AFFIRMED.

HUGHES, J., concurs.

McDONALD, J., dissents and will assign reasons.

McDONALD, J.,

dissenting.

|,I respectfully dissent. I do not find that materials stored by an out-of-state manufactui'er in its warehouse are the responsibility of DOTD under the contract. I believe the Act of God provision, when applied within the context of the contract, applies to materials at the worksite that have not yet gotten final acceptance by DOTD. Contract specification 107.19 provides in its entirety: rebuild, repair restore or pay for damages, including theft and vandalism, to the work before final acceptance and shall bear the expense thereof, except for the following:

CONTRACTOR’S RESPONSIBILITY FOR WORK. Until final acceptance, the contractor shall have the charge and care of the work and shall take every precaution against damage to any part thereof by action of the elements, vandalism, theft or from other cause, whether arising from execution or non-execution of the work. The contractor shall
(a) Guard rail and permanent impact attenuators, shall be repaired as soon as possible after damage. If the engineer determines that the contractor’s operation did not contribute to the damages, the Department will reimburse the contractor for such repairs by force account in accordance with Subsection 109.04.
(b) Damage due to Acts of God such as earthquake, tidal wave, tornado, hurricane or other cataclysmic phenomenon of nature or acts of governmental authorities.
In case of suspension of work, the contractor shall be responsible for the project. The contractor shall take such precautions as necessary to prevent damage to the project, maintain traffic, provide for normal drainage and erect any necessary temporary structures, signs or other facilities at no direct pay. During such period of suspension, the contractor shall acceptably maintain all living material in newly established plantings, seedings and soddings furnished under the contract, and shall take adequate precautions to protect new tree growth and other important vegetative growth against damage. Should suspension of the work not be attributed to any actions of the contractor, the contractor shall be reimbursed for additional work under appropriate pay items or in accordance with Subsection 109.04.

The reference to the immediate repair of guard rails and permanent impact attenuators, as well as the reference to traffic maintenance, show that this section of the contract concerns the worksite and the stockpiled materials at the worksite. While perhaps this provision could have been more artfully drafted, I believe its intent is clear.


author: McClendon, j.

text:
    Javon MOSES v. TERREBONNE GENERAL MEDICAL CENTER.
    No. 2008 CA 1919.
    Court of Appeal of Louisiana, First Circuit.
    March 27, 2009.
    Writ Denied May 29, 2009.

      Timothy K. Lamy, New Orleans, Louisiana, for Plaintiff/Appellant, Javon Moses.
    David J. Shea, Houma, Louisiana, for Defendant/Appellee, Terrebonne General Medical Center.
    Before: PARRO, McCLENDON, and WELCH, JJ.
   McClendon, j.

12Claimant-appellant, Javon Moses, appeals the judgment of the Office of Workers’ Compensation (OWC) in favor of defendant-appellee, Terrebonne General Medical Center (TGMC), dismissing his claim for workers’ compensation benefits related to his liver failure that allegedly occurred as a result of his employment with TGMC. For the following reasons, we affirm the judgment of the OWC.

FACTS AND PROCEDURAL HISTORY

In May of 2003, Mr. Moses began full-time employment with TGMC. Originally hired as a housekeeping technician, Mr. Moses was promoted to a patient transporter in August of 2004, the position he held until November 10, 2005, when he voluntarily resigned from his employment with TGMC for another job.

As part of his employment with TGMC, Mr. Moses was required to submit to annual tuberculosis screening tests. His initial screening test in 2003 was negative, as was his 2004 screening test. However, in October of 2005, Mr. Moses tested positive for exposure to tuberculosis. As a result, Mr. Moses met with Jeanne Hamner, a TGMC employee, who made an appointment for Mr. Moses with Dr. Ray Cinnater of Internal Medicine Associates of Houma. Mr. Moses was examined by Nancy Warren, a family nurse practitioner, with Internal Medicine Associates of Houma on November 1, 2005, and a nine-month course of daily oral ingestion of isoniazid (INH) medication was prescribed. Thereafter, Mr. Moses’ medical information was forwarded to the Terrebonne Parish Health Unit.

On April 19, 2006, Mr. Moses was seen at the TGMC emergency room with complaints of weakness, abdominal pain, dizziness, and jaundice, and he was diagnosed with chemical-induced hepatitis. At that time, Mr. Moses was instructed to discontinue his INH therapy. Four days later, while attending a wedding in Jackson, Mississippi, Mr. Moses was admitted to St. Dominic-Jackson Memorial Hospital. Once stabilized, Mr. Moses was discharged on April 25, 2006, |3with a diagnosis of acute fulminant liver failure secondary to INH toxicity and was scheduled to see Dr. Fredric Regenstein on April 26, 2006, at Tulane University Hospital & Clinic (Tulane) in New Orleans for further evaluation of a possible liver transplant. Mr. Moses was admitted to Tulane on April 28, 2006, and on May 2, 2006, a liver transplant was performed, which was successful.

On September 29, 2006, Mr. Moses filed a disputed claim for compensation, seeking workers’ compensation benefits and asserting that he suffered from an occupational disease related to his employment at TGMC. The matter came for trial on January 16, 2008, and February 14, 2008. The OWC judge took the matter under advisement, and on May 13, 2008, judgment was rendered and signed in favor of TGMC, dismissing Mr. Moses’ workers’ compensation claim. Thereafter, written reasons for judgment were dictated into the record on October 28, 2008.

Mr. Moses has appealed, asserting that the OWC erred in determining that he did not meet his burden of proving 1) that he suffered an occupational illness as a result of his employment at TGMC, 2) a causal relationship between his liver failure and his employment with TGMC, or 3) a causal connection between TGMC’s yearly tuberculosis screening test and his subsequent liver failure. Thus, according to Mr. Moses, the OWC erred in denying him medical and indemnity compensation benefits.

DISCUSSION

The Workers’ Compensation Act provides coverage to an employee for personal injury by accident arising out of and in the course of his employment. An employee must prove the chain of causation required by the workers’ compensation statutory scheme as adopted by the legislature and must establish that the accident was employment-related, that the accident caused the injury, and that the injury caused the disability. Winborne v. Sanderson Farms, 06-2272, p. 3 (La.App. 1 Cir. 9/14/07), 971 So.2d 342, 344. Initially, a workers’ pcompensation claimant has the burden of establishing by a preponderance of the evidence that an accident occurred on the job and he sustained an injury. Once the employee proves the occurrence of a work-related accident, he or she must next establish proof of a causal connection between the accident and the resulting injury by a preponderance of the evidence. Winbome, 06-2272 at p. 3, 971 So.2d at 344.

Prior to the legislative extension of workers’i compensation coverage to include occupational diseases, a worker’s entitlement to compensation, hinged on the occurrence of an “accident,” which can only be established by the claimant’s proof of an “identifiable precipitous event” that caused injury. While enlarging workers’ compensation coverage to cases of occupational disease, LSA-R.S. 23:1031.1 retains the requirement that an employee establish that the disease arises from his work, 1.e., from “causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.” ■ LSA-R.S. 23:1031.1 B. Thus, the claimant must show that he contracted the disease at issue during the course of his employment and that the disease was the result of the nature of the work performed. The causal link between a claimant’s illness and his work-related duties must be established by a reasonable probability; the claimant fails in his burden of proof upon a showing of only a possibility that the employment caused the disease or that other causes not related to the employment are just as likely to have caused the disease. Dunaway v. Lakeview Regional Medical Center, 02-2313, p. 5 (La. App. 1 Cir. 8/6/03), 859 So.2d 131, 134-35.

As in other cases, factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. In applying this standard of review, the appellate | ¿court must determine whether the fact-finder’s conclusions are reasonable, not whether the trier of fact was right or wrong. Where there are two permissible views of the evidence, a fact-finder’s choice between them can never be manifestly erroneous or clearly wrong. Even where the appellate court is convinced it would have weighed the evidence differently if it had been sitting as trier of fact, the court of appeal may not reverse if the fact-finder’s findings are reasonable in light of the record reviewed in its entirety. Banks, 96-2840 at pp. 7-8, 696 So.2d at 556; Jones v. City of Baton Rouge/Parish of East Baton Rouge, 07-1723, pp. 4-5 (La.App. 1 Cir. 5/2/08), 991 So.2d 28, 30. On appeal, Mr. Moses argues that the OWC erred in denying his claim for benefits because the Louisiana Public Health Sanitary Code required that he have annual tuberculosis screening tests in order to remain employed at TGMC. Thus, according to Mr. Moses, but for his employment at TGMC, he would not have been screened for exposure to tuberculosis and therefore would not have known that he was exposed to tuberculosis and would not have undergone the INH therapy, which undisputedly resulted in his liver failure. Accordingly, Mr. Moses contends that the occupational illness of liver failure resulting from INH therapy was due to causes and conditions characteristic and peculiar to his employment at TGMC.

It is undisputed herein that Mr. Moses’ liver failed because of INH toxicity. However, TGMC asserts that Mr. Moses failed to establish a causal connection between his liver failure and his employment at TGMC. Further, TGMC asserts that Mr. Moses failed to establish that his liver failure fit within the definition of occupational disease within the meaning of the Workers’ Compensation Act.

| r,The OWC judge noted that although Mr. Moses indicated that he was exposed to the tuberculosis germ while transporting a patient at TGMC, the evidence established that no tuberculosis germs were identified during the course of Mr. Moses’ employment at TGMC. Dr. Mary Eschete, TGMC’s expert in internal medicine and infectious disease, testified that a worker at TGMC in 2005 who converted from a negative skin test to a positive tuberculosis screening test was just as likely to be exposed to the germ outside of the work environment as at the hospital. Dr. Es-chete stated that, in Terrebonne Parish, statistics show that it is just as likely to be exposed to latent tuberculosis in the public as in a hospital. Joey Hebert, a tuberculosis program manager with the Louisiana Office of Public Health in charge of seven southern parishes, testified that there were no reports of active tuberculosis in 2004 or 2005 at TGMC. Thus, it was also Mr. Hebert’s opinion that it was just as likely that Mr. Moses came into contact with the tuberculosis germ out in the public as it would have been in the hospital. Lauren Melancon, the infection control manager at TGMC, testified that from October 2004 through December 2005, there were no positive cultures for tuberculosis at TGMC. Kristi Olivier, a microbiology supervisor at TGMC, additionally testified that there were no reported cases of patients at TGMC with active tuberculosis from October 2004 through October 2005. Accordingly, the OWC judge determined that Mr. Moses failed to prove that he contracted tuberculosis, latent tuberculosis, or a work-related occupational disease during his employment at TGMC.

The OWC judge also noted that although Mr. Moses stated that he was never given the option not to take the INH medication, Mr. Moses took the INH medicine for only nine days while he was employed at TGMC. He went to see Ms. Warren on November 1, 2005, was given a prescription, and began his INH therapy on November 2, 2005. Mr. Moses voluntarily left his job at TGMC on November 10, 2005, for a better paying job. Thus, once Mr. Moses was no 17longer employed with TGMC, his job was no longer contingent on taking the INH medication. In fact, Mr. Moses turned in his letter of resignation on October 27, 2005, before he ever took his first dose of the INH medication. Thus, the OWC judge concluded that Mr. Moses voluntarily chose to continue the INH therapy.

Further, the OWC judge determined that Mr. Moses failed to prove that his required skin testing as an employee at TGMC lead to his subsequent liver failure. Hence, the OWC judge concluded that Mr. Moses failed to meet his burden of proving that he developed a work-related occupational disease during his employment with TGMC.

After a thorough review of the record and the evidence presented in this matter, we are unable to say that the OWC judge was manifestly erroneous in her factual findings. Because we find the OWC judge’s factual findings are supported by the record, we find them to be reasonable. Likewise, based on these factual findings, we find no error in the OWC judge’s ruling that dismissed Mr. Moses’ claim for workers’ compensation benefits. Thus, we hereby affirm the OWC’s judgment of May 13, 2008. The costs of this appeal are assessed to Mr. Moses.

AFFIRMED.

      . Mr. Moses suffered organ rejection complications in July of 2007, which were ultimately resolved.

        . Louisiana Revised Statutes 23:1031.1 B provides, in pertinent part:
      An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.

      . Section 503B of the Sanitary Code provides:
      Any employee or volunteer at any medical or 24-hour residential facility requiring licensing by the Department of Health and Hospitals who has a positive purified protein derivative skin test for tuberculosis, five tuberculin unit strength, given by the Man-toux method, or a chest X-ray other than normal, in order to remain employed or continue work as a volunteer, shall complete an adequate course of chemotherapy for tuberculosis as prescribed by a Louisiana licensed physician, or shall present a signed statement from a Louisiana licensed physician stating that chemotherapy is not indicated.

      . When given information that in 2007 Mr. Moses’ father had tested positive for exposure to tuberculosis, Dr. Eschete confirmed her position that exposure was more likely to have occurred outside of the hospital.


author: GUIDRY, J.

text:
    Kelda PRICE v. KIDS WORLD, Ankur Brambhatt, Small World.
    No. 2008 CA 1815.
    Court of Appeal of Louisiana, First Circuit.
    March 27, 2009.
    Rehearing Denied May 13, 2009.

      Kelda Price, Baton Rouge, LA, In Proper Person.
    David M. Cohn, D. Brian Cohn, Baton Rouge, LA, for Defendant/Appellee, Kids World, Ankur Brambhatt, and Small World.
    Before: KUHN, GUIDRY, and GAIDRY, JJ.
   GUIDRY, J.

12AppelIant, Kelda Price, appeals from the judgment of the district court, dismissing her claims against the defendants, Kids World, Ankur Brambhatt, and Small World. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On July 17, 2006, Kelda Price filed a petition for damages, pro se, contending that the defendants’ acts of negligence and discrimination resulted in damages for mental grief; loss of love, affection, and companionship; and emotional distress, anguish, humiliation, and loss of enjoyment of life. Thereafter, on August 18, 2006, Price filed a motion for preliminary default, contending that the defendants had failed to timely file an answer to her petition. On August 23, 2006, the district court signed a judgment of default, finding that the defendants had failed to answer within the time prescribed by law. Additionally, the judgment adjudged that Price “have judgment and recover against defendants upon premise, damages for past, present, and future sufferings, mental anguish[,] emotional distress, humiliation, and all general and equitable relief from the date of [j Judicial demand together with legal interest until finally paid and for the cost of these proceedings.”

On August 24, 2006, the defendants filed an answer to Price’s petition and asserted declinatory exceptions raising the objections of insufficiency of citation and insufficiency of service of process, and dilatory exceptions raising the objections of vagueness and nonconformity of the petition with the requirements of La. C.C.P. art. 891. Thereafter, Price filed a motion to confirm the preliminary default judgment, which was set for a hearing. The defendants subsequently filed a motion to strike the default judgment and motion to compel discovery responses. Following a hearing on the parties’ motions, the district court signed a judgment on February 28, 2007, sustaining all of defendants’ exceptions and granting the | ¡¡defendants’ motion to strike. The judgment ordered that the default judgment signed on August 23, 2006, be striken from the record and gave Price thirty days to amend her petition to remove the grounds for the objections or face dismissal of her action with prejudice.

On December 20, 2007, the district coui't signed another judgment, giving Price an additional thirty days to comply with the judgment of February 28th and ordering her to amend her petition to remove the grounds for the objections, in default of which, Price’s action against the defendants would be dismissed with prejudice. On January 16, 2008, Price filed an amended petition for damages; however, the petition merely added the natural father of Price’s children as an additional plaintiff, and did not correct the deficiencies as contained in the February 28, 2007 judgment. Accordingly, on January 30, 2008, the defendants filed a rule to show cause why Price’s petition for damages should not be dismissed for failure to comply with the court’s conditions and terms reflected in the December 20, 2007 judgment.

On July 29, 2008, the district court signed a judgment dismissing Price’s claims against the defendants with prejudice. Price now appeals from this judgment.

DISCUSSION

On appeal, Price seeks review of the district court’s dismissal of her claims against the defendants, as well as review of the trial court’s interlocutory judgments striking the default judgment from the record and granting defendants’ exceptions. When an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory judgments prejudicial to her, in addition to the review of the final judgment. Judson v. Davis, 04-1699, p. 8 (La. App. 1st Cir.6/29/05), 916 So.2d 1106, 1112, writ denied, 05-1998 (La.2/10/06), 924 So.2d 167. Accordingly, we begin our discussion with | .(Whether the district court erred in granting defendants’ motion to strike the default judgment from the record.

As previously stated, Price filed a motion for preliminary default on August 18, 2006, asserting that the defendants were served with notice of the lawsuit on July 31, 2006, and failed to timely file an answer to her petition. On August 23, 2006, the district court entered judgment of default in favor of Price for the defendants’ failure to answer Price’s petition within the time prescribed by law. However, this “preliminary default” also adjudged that Price “have judgment and recover against defendants upon premise, damages for past, present, and future sufferings, mental anguish[,] emotional distress, humiliation, and all general and equitable relief from the date of [j Judicial demand together with legal interest until finally paid and for the cost of these proceedings.”

Defendants subsequently answered Price’s petition and asserted several exceptions, including the declinatory exceptions raising the objections of insufficiency of service of process and insufficiency of citation. Following Price’s filing of her motion to confirm the default judgment, defendants urged their motion to strike the “preliminary default judgment” from the record.

Pursuant to La. C.C.P. art. 1001, a defendant shall file his answer within fifteen days after service of citation upon him, except as otherwise provided by law. If the defendant fails to answer within the time prescribed by law, judgment by default may be entered against him. La. C.C.P. art. 1701(A); Mitchell v. Bass, 01-2217, p. 3 (La.App. 1st Cir.11/8/02), 835 So.2d 778, 780. The judgment of default, or preliminary default, may be obtained by oral motion in open court or by written motion, and the judgment shall consist of merely an entry in the minutes. La. C.C.P. art. 1701(A).

The preliminary default judgment at issue, however, consists of more than just an entry in the minutes and purports to be a final judgment, granting Price |damages, interest, and court costs. Further, the defendants have alleged that Price failed to serve two of the named defendants, particularly Ankur Brambhatt, with process and citation. According to the record, there is no evidence that Mr. Brambhatt was ever served with a copy of Price’s petition prior to her filing the motion for preliminary default. It is well settled that a default judgment may not be taken against a person who has not received citation and service thereof. Mitchell 01-2217 at p. 3, 835 So.2d at 780. Accordingly, we find no error in the district court’s granting of defendants’ motion to strike.

With regard to the district court’s sustaining of defendants’ exceptions and ultimate dismissal of Price’s claims with prejudice, we likewise find no error. In the February 28, 2007 judgment, the district court sustained the defendants’ decli-natory exceptions raising the objections of insufficiency of service of process and insufficiency of citation, and dilatory exceptions raising the objections of vagueness and indefiniteness and nonconformity of the petition with La. C.C.P. art. 891. The district, court gave Price thirty days to amend her petition to effect service of process on Kids World and Ankur Bram-bhatt or face dismissal of her claims as to those two defendants, and also gave her thirty days to amend her petition to conform with La. C.C.P. art. 891 and to include sufficient detail of the material facts to support her assertions alleged therein or face dismissal of her claims against Kids World, Ankur Brambhatt, and Small World.

The Louisiana Code of Civil Procedure sets forth a system of fact pleading. Teachers’ Retirement System of Louisiana v. Louisiana State Employees’ Retirement System, 456 So.2d 594, 596 (La.1984). Louisiana Code of Civil Procedure article 854 provides that “all allegations of fact of the petition ... shall Lbe set forth in numbered paragraphs.” Article 891(A) further provides that a petition must contain “a short, clear, and concise statement of ... the material facts of, the transaction or occurrence that is the subject matter of the litigation.” To plead “material facts,” the petitioner must allege more than mixed questions of law and fact, such as that the defendant breached the contract or acted unreasonably. Rather, the Code requires the pleader to state what act or omission he or she will establish at trial. Fitzgerald v. Tucker, 98-2313, p. 7 (La.6/29/99), 737 So.2d 706, 713.

From our liberal review of the pleadings in the record, and considering Price is a pro se litigant, we find Price’s petition is completely devoid of any material facts, but rather, consists of mixed questions of law and fact, such as the allegations that defendants failed to “properly monitor, supervise and inspect employees in operations to take required degree of commensurate care and professionalism” and the defendants “prevent[ed] minor children ... from attending school because of discrimination and mother took part in protected activity reporting defendants bad-faith action” and that the defendants maliciously gave a “false report to investigating agency.” The district court gave Price thirty days to amend her petition, and by judgment signed on December 20, 2007, gave her an additional thirty days to comply with the February 28, 2007 judgment, in default of which her action against defendants would be dismissed in its entirety with prejudice.

When the grounds of the objection pleaded in the dilatory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order plaintiff to remove them within the delay allowed by the court, and the action, claim, demand, issue or theory subject to the exception shall be dismissed only for noncompliance with this order. La. C.C.P. art. 933(B). In the instant case, the district court gave Price two opportunities to amend her petition to plead [ vmaterial facts in conformity with La. C.C.P. art. 891 and Price failed to do so. Accordingly, we find no error in the trial court’s July 29, 2008 judgment dismissing her claims against the defendants with prejudice.

In addition to Price’s assigning as error the district court’s granting of defendants’ motion to strike, sustaining of defendants’ exceptions, and dismissal of her claims against the defendants, Price also asserts that the district court was biased and asks this court to remand the matter to the district court for a hearing under La. C.C.P. art. 154. However, La. C.C.P. art. 154 provides:

A party desiring to recuse a judge of a district court shall file a written motion therefor assigning the ground for recu-sation. This motion shall be filed prior to trial or hearing unless the party discovers the facts constituting the ground for recusation thereafter, in which event it shall be filed immediately after these facts are discovered, but prior to judgment. If a valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion to another judge or a judge ad hoc, as provided in Articles 155 and 156, for a hearing, [Emphasis added.]

Price did not file a motion to recuse the district court judge prior to rendition of judgment as is required. Accordingly, this assignment of error has no merit.

Finally, defendants ask this court to award damages for frivolous appeal pursuant to La. C.C.P. art. 2164. However, defendants failed to file an answer to the appeal requesting such damages, and therefore, we are precluded from considering this issue. Kevin Associates, LLC v. Crawford, 04-2227, p. 8 (La.App. 1st Cir.11/4/05), 917 So.2d 544, 550.

| sCONCLUSION

For the foregoing reasons, we affirm the judgment of the district court. All costs of this appeal are assessed to the appellant, Kelda Price.

AFFIRMED.

      . Alternatively, even if we would not have found the district court was correct in granting defendants’ motion to strike the default judgment, Price's argument that she was entitled to confirmation of that default judgment would fail. It is well settled that a defendant may file his answer at any time prior to confirmation of default against him, and any default judgment granted after an answer has been filed is an absolute nullity. La. C.C.P. art.2002.

      . Because we End the trial court was correct in sustaining defendants' dilatory exception raising the objection of nonconformity of the petition with the requirements of La. C.C.P. art. 891 and in dismissing Price’s petition for failing to comply with the court’s order to amend her petition to remove the grounds for the objection, we pretermit discussion of the trial court’s judgment as to the other exceptions.


author: GUIDRY, J. KUHN, J.,

text:
    Troy Benton SEARLES v. Amy Cashio SEARLES.
    No. 2008 CA 1098.
    Court of Appeal of Louisiana, First Circuit.
    March 27, 2009.
    Dennis S. Fitzgerald, Baton Rouge, LA, for Plaintiff/Appellee Troy Benton Searles.
    James L. Hilburn, Baton Rouge, LA, for Defendant/Appellant Amy Cashio Searles.
    Before KUHN, GUIDRY, and GAIDRY, JJ.
   GUIDRY, J.

RA wife appeals the dismissal of her action to collect arrearages in support payments from her spouse pending divorce. Finding merit in the wife’s contentions, we vacate the judgment of the trial court and remand this matter for farther proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

On February 23, 2007, Troy Benton Searles filed a petition for divorce in accordance with Louisiana Civil Code article 102 to terminate his marriage of three years to Amy Cashio 'Searles. Of their marriage, two children were born. In response to the petition for divorce, Mrs. Searles filed an answer and reconventional demand wherein she sought a determination of the issues of child custody, child support, and spousal support. The trial court rendered judgment on May 4, 2007, awarding the parties joint custody of their minor children with shared visitation. The court further ordered Mr. Searles to make the following support payments: $540.42 per month in child support, effective March 9, 2007, “subject to a credit for any amounts paid;” 70 percent of the cost of health insurance, daycare, and any uninsured medical and dental expenses for the minor children; Mrs. Seax-les’ automobile insurance; and $250.00 per month in interim spousal support, effective March 9, 2007, “subject to a credit for any amounts paid.”

On June 13, 2007, Mrs. Searles filed a “Rule for Arrearages for Failure to Pay Child Support and Spousal Support,” wherein she alleged that Mr. Searles was “consistently and constantly late in paying” his support obligations that were due on the ninth of each month. She further alleged that Mr. Searles refused to pay his June 9, 2007 support obligations and as a result he owed an arrearage of $815.00 for past due child and interim spousal support.

A hearing on the rule was held on December 18, 2007, following which the trial court rendered judgment in favor of Mr. Searles, finding that he had overpaid |shis support obligations. Accordingly, the trial court signed a written judgment on January 4, 2008, dismissing Mrs. Searles’ rule for arrearages and contempt of court, which judgment is the subject of this appeal filed by Mrs. Searles.

DISCUSSION

In her first assignment of error, Mrs. Searles alleges that the trial court failed to conduct a proper contradictory hearing before rendering judgment. We agree. The hearing in this matter was set pursuant to a rule for arrearages filed by Mrs. Searles. As the relief requested by Mrs. Searles in her rule was not something to which she was clearly entitled and which further required supporting proof, the matter was required to be decided contradictorily with Mr. Searles, the adverse party. See La. C.C.P. art. 963; see also La. C.C.P. art. 3946. Furthermore, as Mr. Searles did not file a responsive pleading admitting the amount due, the contradictory hearing was required in order for the trial court to determine the amount of arrearages owed, if any. See La. C.C.P. art. 963; see also La. C.C.P. art. 3946, Official Revision Comments (b).

At the hearing on Mrs. Searles’ rule for arrearages, both parties requested permission to testify regarding the amounts owed and payments made, but the trial court denied their requests. Instead, the trial court questioned the parties’ counsel and solicited unsworn testimony directly from the parties regarding what payments were made and the purpose of the payments. While the trial court did allow Mrs. Searles to introduce in part and proffer in part documentary evidence regarding payments that were made, a review of the hearing transcript reveals that the trial court relied on the statements of counsel and the unsworn statements of the parties in interpreting these documents and in rendering judgment.

The statements made by the parties were not evidence on which the trial court could rely to render judgment in this matter because the statements were not sworn to nor were the parties subject to cross-examination regarding the statements |,imade. See La. C.C.P. art. 1633 A and La. C.E. arts. 603 and 611 A & B; see also Coffman v. Coffman, 40,992 (La. App.2d Cir.4/12/06), 926 So.2d 809. Moreover, without the testimony of the parties regarding the purpose of all the payments, it is impossible for us to determine whether Mrs. Searles was entitled to the relief sought, because without the sworn testimony of the parties, we cannot determine whether Mr. Searles can properly be credited for all of the documentary evidence of payments submitted at trial, particularly those payments before March 9, 2007, (when Mrs. Searles filed her reconventional demand for interim support) and after June 12, 2007 (when Mrs. Searles filed her rule for arrearages). See La. R.S. 9:315.10 B & 315.21 A and La. C.C.P. art. 3946.

Accordingly, we remand this matter to the trial court for a full contradictory hearing. See Humphreys v. Humphreys, 09-0185 (La.3/13/09), 4 So.3d 798 (per Ucuriam). Based on our conclusion that the judgment must be vacated and this matter remanded to the trial court, we pretermit discussion of Mrs. Searles’ remaining assignments of error.

CONCLUSION

The judgment of the trial court dismissing Mrs. Searles’ rule for arrearages is vacated and this matter is remanded to the trial court to hold a full contradictory hearing. All costs of this appeal are assessed to the appellee, Troy Benton Searles.

VACATED AND REMANDED.

KUHN, J., Concurs & Assigns Reasons.

KUHN, J.,

concurring.

hi write separately to point out that trial judges often are amenable to informal resolution of perfunctory matters to avoid the expenses associated with litigation. But where counsel for one of the litigants complains about a lack of a contradictory hearing and the record does not contain the formal evidentiary support, technically, the matter is correctly remanded for a hearing. Logically, at the hearing, all that is needed to satisfy appellant’s request to collect arrearages is to calculate the amount owed, the amount paid, and determine the difference, if any.

Additionally, I remind counsel that the language used in a brief shall be courteous and free from insulting, abusive, discourteous matter or criticism of any court or judge. See La. URCA Rule 2-12.4. A violation of La. URCA Rule 2-12.4 can subject the author to punishment for contempt of court and to having such brief returned. Personally attacking a trial judge by use of insulting and discourteous criticism is not helpful to either the court or to the attorney’s client.

      . The cited articles provide:
      La. C.C.P. art. 1633 A:
      Before testifying, every witness shall be required to declare that he will testify truthfully, by oath or affirmation administered in a form calculated to awaken his conscience and impress his mind with his duty to do so.
      La. C.E. art. 603:
      Before testifying, every witness shall be required to declare that he will testify truthfully, by oath or affirmation administered in a form calculated to awaken his conscience and impress his mind with his duty to do so.
      La. C.E. art. 611:
      A. Control by court. Except as provided by this Article and Code of Criminal Procedure Article 773, the parties to a proceeding have the primary responsibility of presenting the evidence and examining the witnesses.

      B. Scope of cross-examination. A witness may be cross-examined on any matter relevant to any issue in the case, including credibility. However, in a civil case, when a party or person identified with a party has been called as a witness by an adverse party to testify only as to particular aspects of the case, the court shall limit the scope of cross-examination to matters testified to on direct examination, unless the interests of justice otherwise require.

      . Notably, the hearing transcript shows that the trial court gave Mr. Searles credit for two payments of which Mr. Searles verbally informed the court and copies of the checks were shown to counsel for Mrs. Searles during the hearing, but the copies were not introduced into evidence.