author: JOY COSSICH LOBRANO, Judge.

text:
    BIOCLIN, BV, et al. v. MULTIGYN USA, LLC, et al.
    No. 2012-CA-0962.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 5, 2013.

      Stuart H. Smith, John L. Fontenot, Jr., Smith Stag, L.L.C., New Orleans, LA and Barry J. Cooper, Jr., Cooper Law Firm, L.L.C., New Orleans, LA, for Plaintiffs/Appellants.
    (Court Composed of Chief Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

11 Plaintiffs, BioClin, BV (“BioClin”), and Floris Koumans, appeal a trial court judgment dismissing their petition for damages and injunctive relief on declinatory exceptions of lack of personal jurisdiction raised by the defendants, MultiGyn USA, LLC (“MultiGyn USA”); Karl Bonga; and Joyce Bonga. For the following reasons, we affirm the judgment.

BioClin is a Dutch Corporation that was founded in 1989 by Floris Koumans, its current Director. The company markets specially-formulated feminine hygiene products under the name “Multi-Gyn” and owns the international trademarks on both “Multi-Gyn” and the “stylized female form” logo that appears on its products. BioClin also holds a number of “Multi-Gyn” registered domain names for internet use.

The Bongas were married and residing in Illinois when Joyce Bonga entered into two agreements with BioClin in 2001. The first, a distribution agreement, granted Joyce Bonga the exclusive rights to distribute, market, and sell BioClin products in the United States. The second, a confidentiality agreement, required | Joyce Bonga to keep secret all confidential information regarding BioClin’s trademarks and products and to obtain the express written consent of the company before disclosing any confidential information to a third party.

In May 2004, BioClin terminated the contracts with Joyce Bonga for failure to meet her sales goals. In the meantime, however, Karl Bonga had formed Multi-Gyn USA, registered the domain name “www.multigyn.com” and began selling Multi-Gyn and MultiGyn products via the internet. The Bongas divorced in 2007, and eventually both became residents of Florida.

In March 2011, BioClin, through its attorney, sent Karl Bonga a cease and desist letter, threatening to sue him, MultiGyn USA, and Joyce Bonga for unfair trade practices and trademark infringement if he continued to sell the products via the internet website. Karl Bonga refused to remove the website and continued to sell the products. Moreover, in October 2011, he filed articles of organization with the Florida Secretary of State’s office, registering MultiGyn USA as a limited liability corporation.

In November 2011, the plaintiffs filed the instant lawsuit to enjoin Karl Bonga, MultiGyn USA and Joyce Bonga from selling the products and using the MultiGyn name, the stylized female form logo, and the “vnuw.multigyn.com” domain. The plaintiffs also sought damages pursuant to the Louisiana Unfair Trade Practices and Consumer Protection Law, La. R.S. 51:1401 et seq.

In response, Karl Bonga and MultiGyn USA filed exceptions of lack of personal jurisdiction, no cause of action, no right of action and res judicata. Joyce |sBonga, individually, filed an exception of lack of personal jurisdiction. Following a hearing, the trial court sustained the exceptions of lack of personal jurisdiction.

BioClin and Koumans appealed, raising four assignments of error. The first three assignments collectively address the trial court’s consideration of the affidavits submitted by Karl Bonga, BioClin, and Joyce Bonga. The plaintiffs argue that the trial court erred in considering the affidavits, contending that the affidavits were hearsay and not proper evidence on an exception of lack of personal jurisdiction. We disagree. This court and other courts have allowed the submission of affidavits in proceedings involving exceptions of lack of personal jurisdiction. See Marchand v. Asbestos Defendants, 2010-0476, p. 9 (La.App. 4 Cir. 11/10/10), 52 So.3d 196, 201, writ denied, 2010-2732 (La.2/11/11), 56 So.3d 1002; see also Quality Design & Constr. v. Tuff Coat Mfg., Inc., 2005-1712, pp. 5-6 (La.App. 1 Cir. 7/12/06), 939 So.2d 429, 433.

Next we address whether the trial court erred in sustaining the exceptions of lack of personal jurisdiction.

This Court reviews the trial court’s dismissal of a claim for lack of personal jurisdiction de novo. See Walker v. Super 8 Motels, Inc., 2004-2206, p. 4 (La.App. 4 Cir. 12/7/05), 921 So.2d 983, 986. The party that seeks to invoke personal jurisdiction bears the burden of establishing such jurisdiction exists. This burden is Lsatisfied upon a prima facie showing that jurisdiction is appropriate, de Reyes v. Marine Management and Consulting, Ltd., 586 So.2d 103, 107 (La.1991).

Our authority to exercise jurisdiction over a non-resident defendant is granted under the Louisiana Long-arm Statute, LSA-R.S. 13:3201. This authority is limited by the due process requirements of the Fourteenth Amendment. U.S.C.A. Const. Amend. 14; LSA-R.S. 18:3201. The due process test was first established by the United States Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 157, 90 L.Ed. 95 (1945). There are 15two prongs of the due process test that must be satisfied before personal jurisdiction can be exercised. Id. First, the nonresident defendant must have “minimum contacts” with the forum state; and second, the exercise of personal jurisdiction in the forum state must not violate the basic notions of “fair play and substantial justice.” When applying the test the quality and nature of the activity must be considered. See id.

There are two distinct types of jurisdiction that a state may exercise over a non-resident defendant, “general” and “specific.” A court may exercise general jurisdiction over a defendant when the defendant has engaged in continuous and systematic contacts with the forum state, but the contacts are unrelated to the lawsuit. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-16, 104 S.Ct. 1868, 1872-73, 80 L.Ed.2d 404 (1984). A court may exercise specific jurisdiction over a defendant when the alleged cause of action is related to or arises out of the defendant’s contact with the state. Id., 466 U.S. at 414 n. 8, 104 S.Ct. at 1872 n. 8. General jurisdiction has not been asserted in the instant case. Rather, the plaintiffs seek to assert specific jurisdiction over Karl Bonga, MultiGyn USA, and Joyce Bonga because Karl Bonga allegedly maintains an interactive website that has allowed Louisiana residents to purchase Multi-Gyn products.

In order for a plaintiff to satisfy its burden of proving minimum contacts with the forum state, there must be a showing that the defendant purposefully availed itself of the laws and protections of the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985). frOnce the plaintiff demonstrates that minimum contacts with the forum state exists, “a presumption of reasonableness of jurisdiction arises’ and the burden then shifts to the opposing party to prove the assertion of jurisdiction would be so unreasonable in light of traditional notions of fair play and substantial justice as to overcome the presumption of reasonableness created by the defendant’s minimum contacts with the forum.’ ” Ruckstuhl v. Owens Corning Fiberglas Corp., 98-1126, p. 6 (La.4/13/99), 731 So.2d 881, 886 (citing de Reyes v. Marine Mgmt. and Consulting, Ltd., 586 So.2d 103, 107 (La.1991)).

In general, questions of personal jurisdiction are factual determinations that must be weighed on a case by case basis. There are no clear-cut rules or a set jurisdictional formula that can be applied in determining whether personal jurisdiction conforms with the notion of “fair play and substantial justice.” See Burger King Corp., 471 U.S. at 466, 105 S.Ct. at 2184. To the contrary, “... any inquiry into ‘fair play and substantial justice’ necessarily requires determinations ‘in which few answers will be written in black and white. The greys are dominant and even among them the shades are innumerable.’ ” Id., 471 U.S. at 486 n. 29, 105 S.Ct. at 2189 n. 29 (citing Kulko v. California Superior Court, 436 U.S. 84, 92, 98 S.Ct. 1690, 1697, 56 L.Ed.2d 132 (1978)). As relevant as that statement was when it was written, the world wide use of the internet has expanded the grey areas of personal jurisdiction. See Swoboda v. Hero Decks, 2009-1303, p. 4 (La.App. 4 Cir. 3/31/10), 36 So.3d 994, 998.

|7In Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119, 1124 (W.D.Pa.1997), the court employed a “sliding scale” approach to determine whether a website has minimum contacts with a forum state sufficient to invoke personal jurisdiction. The sliding scale categorizes the websites activities as passive or interactive. Id. A passive website that does little more than make information available to those who are interested in it does not provide the minimum contacts that warrant the exercise of personal jurisdiction. Id. (citing Bensusan Restaurant Corp. v. King, 937 F.Supp. 295 (S.D.N.Y.1996)). On the other end of the spectrum is the interactive website where business is clearly done through the website. Those websites typically have repeated contacts and transmissions and may also allow participants to enter into contracts. Under those circumstances personal jurisdiction is proper. Zippo, 952 F.Supp. at 1124. However, when a website falls somewhere in the midrange of the scale and information is exchanged between the host and user, but not on an ongoing basis, the court must look to the extent of the interactivity and commercial nature of the exchange of information to determine whether personal jurisdiction should be exercised. Id. (citing Maritz, Inc. v. Cybergold, Inc., 947 F.Supp. 1328 (E.D.Mo.1996)).

For instance, in Quality Design & Constr. v. Tuff Coat Mfg., Inc., supra, 2005-1712, 939 So.2d 429, and later in Crummey v. Morgan, 2007-0087 (La.App. 1 Cir. 8/8/07), 965 So.2d 497, the Louisiana First Circuit Court of Appeal utilized the Zippo sliding scale approach as a guide for determining personal jurisdiction. |sIn both cases, the cause of action arose from an allegedly defective product purchased by a Louisiana citizen.

Tuff Coat manufactured a polyurethane coating for cement. Quality Design & Constr., 2005-1712, p. 2, 939 So.2d at 431. Tuff Coat’s product, Ultra Tuff, was used in a Louisiana water park. Id. The pigment from the Ultra Tuff leached and damaged the water purification system and required repair and recoating of the covered surfaces. Id. The construction company filed suit against Tuff Coat and Tuff Coat excepted on the grounds of personal jurisdiction. Id. Tuff Coat operated a website that provided a telephone number for ordering the products and a list of other Louisiana businesses that had used the products. Id. at p. 6, 939 So.2d at 433. Tuff Coat argued that their website was purely informational and thus, passive. Id. The First Circuit, using the Zippo sliding scale, found that Tuff Coat’s website was passive and even though Tuff Coat’s products had been purchased by at least five Louisiana businesses, there was no purposeful availment “of Louisiana’s law such that it could expect to be haled into a Louisiana court.” Id. at p. 9, 939 So.2d at 435.

The Crummey case involved defendants that used a third-party website to advertise and sell a recreational vehicle. Crummey, 2007-0087, p. 2, 965 So.2d 497, 499. The defendants and the vehicle were located in Texas. Id. The record indicated that Crummey found the vehicle online, had communicated with the seller over the telephone, and used telephone contact to place a deposit on the vehicle with a credit card. Id. The defendants offered to deliver the vehicle to | ^Louisiana, but Mr. Crummey chose to travel to Texas to take possession of it. Id. The transfer of ownership took place in Texas and Mr. Crum-mey took possession of the vehicle and began his drive back to Louisiana. Id. at pp. 2-3, 965 So.2d at 499. Prior to crossing the Texas/Louisiana border, the vehicle stopped running. Id. at p. 3, 965 So.2d at 499. The defendants refused to submit a full refund for the vehicle and Mr. Crum-mey filed suit in Louisiana. Id. The defendants filed an exception of lack of personal jurisdiction. Id.

Using the Zippo sliding scale and distinguishing the Tuff Coat decision, the First Circuit found that there were appropriate minimum contacts to exercise personal jurisdiction. Id. at p. 12, 965 So.2d at 504. The Crummey court found that the repeated contact the defendants had with Louisiana beginning with the advertising of the vehicle over the internet, then the negotiations and the tender of money over the telephone supported its finding that the defendants had purposefully availed themselves to the laws and protections of Louisiana. Id. The court also noted that the defendants had delivered two other vehicles to buyers in Louisiana. In dicta the court raised its concern for online buyers who would have no recourse in their home state against sellers who misrepresent products and/or sell defective products. Id.

More recently, in Swoboda, supra, 2009-1303, 36 So.3d 994, a case very similar to the instant one, this Court considered whether an internet merchandiser had established sufficient contacts with Louisiana to be subjected to personal jurisdiction. In Swoboda, Parody Productions published novelty playing cards and | insold them over the internet. Id. at p. 1, 36 So.3d at 996. The product at issue was the “Hero Decks” which featured well known sports figures, including Ron Swoboda, a former player with the New York Yankees. Swoboda claimed he had never given Parody permission to use his image and filed suit to enjoin the company from using his name and likeness and for damages for violating his right to publicity and unjust enrichment. Id. Parody raised an exception of lack of personal jurisdiction, which the trial court sustained. Id. at pp. 1-2, 36 So.3d at 996.

On appeal, this Court acknowledged that although the Zippo sliding scale is a useful guide when examining the extent to which websites are present in a forum state, it does not eliminate the necessity of the Court to independently review the relationship among the forum, the defendant, and the litigation when determining personal jurisdiction. Id. at pp. 7-8, 36 So.3d at 999 (citing A&L Energy, Inc. v. Pegasus Group, 00-3255 (La.6/29/01), 791 So.2d 1266). The Court noted that, as an internet merchandiser, Parody sold playing cards on an interactive website that would fall midrange on the Zippo sliding scale. The record indicated that the playing cards could be purchased directly from the site. Other than the ability of Louisiana residents to access the website and purchase the merchandise, the record was void of any other contact Parody had with Louisiana. The Court also noted that once Parody refused to stop using Swoboda’s likeness, his attorney purchased a deck of the Mets playing cards over the internet shortly before filing suit against Parody. Id. at p. 8, 36 So.3d at 999. In view of the facts, the Court determined | n that extending personal jurisdiction over Parody would not comport with the notions of fair play and substantial justice. The Court affirmed the trial court, stating:

The pivotal question in this case is whether the plaintiffs counsel’s purchase from this website or the mere ability of Louisiana citizens to access the merchandise from the website constitutes Parody purposefully availing itself of the benefits and laws of Louisiana for this cause of action. The United States Supreme Court has maintained that “the mere unilateral activity of those who claim some relationship with the nonresident defendant cannot satisfy the requirement of contact with the forum state.” World[-Wide] Volkswagen, Corp. v. Woodson, 444 U.S. 286, 298, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980) (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 [S.St.] [S.Ct.] 1228, 1239-40 [2 L.Ed.2d 1283 (1958) ]). Further, although the cause of action complained of in the plaintiffs petition stems from Parody’s manufacturing and selling of the playing cards, Mr. Swoboda’s cause of action as plead in his petition arose prior to his attorney’s purchase of the Mets cards in Louisiana. Thus, we find that the connexity between Parody’s contact with Louisiana and Mr. Swoboda’s cause of action are too attenuated to constitutionally exercise personal jurisdiction over Parody.

Id. at p. 8, 36 So.3d at 999.

In the instant case, the trial court found that Joyce Bonga was divorced from Karl Bonga in May 2007, had no interest in MultiGyn USA, was not an employee of MultiGyn USA, and has no website selling products in Louisiana. The trial court also found that Joyce Bonga has never distributed products in Louisiana and has no contacts that would subject her to the jurisdiction of a Louisiana court.

As to Karl Bonga and MultiGyn USA, the trial court, relying on the analysis in Swoboda, supra, found that Karl Bonga’s mere creation of a website, does not constitute purposeful availment of the forum benefits. The court pointed out that ligKarl Bonga presently resides in Florida and MultiGyn USA is a Florida corporation that operates a website whereby customers can purchase MultiGyn products through its online ordering feature. Like Parody in Swoboda, the trial court noted that MultiGyn USA has only shipped to Louisiana on one occasion — to Clyde McCoy, who identified himself as private investigator employed by the law firm representing BioClin. Other than the ability of Louisiana residents to access the Multi-Gyn USA website to purchase merchandise, and the single website point-of-sale transaction between MultiGyn USA and McCoy, the record is void of any other contact Karl Bonga and MultiGyn USA had with Louisiana.

Finally, the plaintiffs contend that the trial court erred by ignoring the affidavit of Devin Gregoire, which they submitted in opposition to the exceptions of lack of personal jurisdiction. Gregoire, the owner of an information technology consulting firm, averred that he visited the MultiGyn USA website and opined that it was fully interactive; non-exclusive, i. e. it did not exclude contact with Orleans Parish browsers; and engaged in repeated contact with this forum (Orleans Parish). Nothing in the record indicates that trial court did not consider Gregoire’s affidavit. Also, the affidavit does not necessarily contradict the affidavits submitted by the Karl Bonga and MultiGyn USA. We find no merit to this argument.

After reviewing the record and given the facts and circumstances of this case, we agree with the trial court’s findings that the plaintiffs have not established that Joyce Bonga, Karl Bonga and MultiGyn USA have availed themselves of the jurisdiction of the Louisiana courts and extenuating personal jurisdiction over them would not comport with the notions of fair play and substantial justice.

| ^Accordingly, for the reasons herein, the trial court judgment sustaining the exceptions of lack of personal jurisdiction is affirmed.

AFFIRMED.

      . The record indicates that the plaintiffs objected to the introduction into evidence of the affidavits. The trial court overruled the objection as to the affidavits of Karl Bonga and BioClin. The trial court sustained the objection as to Joyce Bonga’s affidavit because she had not submitted the affidavit to the court at least forty-eight (48) hours prior to the hearing as per the court’s March 8, 2012 order. However, the trial court allowed a proffer of the affidavit at the conclusion of the hearing.

      . LSA-R.S. 13:3201. Personal jurisdiction over nonresidents
      A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident:
      (1) Transacting any business in this state.
      (2) Contracting to supply services or things in this state.
      (3) Causing injury or damage by an offense or quasi offense committed through an act or omission in this state.
      (4) Causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives revenue from goods used or consumed or services rendered in this state.
      (5) Having an interest in, using or possessing a real right on immovable property in this state.
      (6) Non-support of a child, parent, or spouse or a former spouse domiciled in this state to whom an obligation of support is owed and with whom the nonresident formerly resided in this state.
      (7) Parentage and support of a child who was conceived by the nonresident while he resided in or was in this state.
      (8) Manufacturing of a product or component thereof which caused damage or injuiy in this state, if at the time of placing the product into the stream of commerce, the manufacturer could have foreseen, realized, expected, or anticipated that the product may eventually be found in this state by reason of its nature and the manufacturer's marketing practices. B. In addition to the provisions of Subsection A, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.

      . See Affidavit of Karl Bonga, p. 1.


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge.

license: Public Domain

text:
    Dorothy FALCONE and Vincent Falcone, Sr., Individually and On Behalf of their Deceased Son, Michael Falcone v. TOURO INFIRMARY. Dorothy Falcone and Vincent Falcone, Sr., Individually and On Behalf of their Deceased Son Michael Falcone v. Touro Infirmary and SHONO, Inc.
    Nos. 2013-CA-0015, 2013-CA-0016.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 6, 2013.

      Mark P. Glago, Rina L. Eisenberg, Gla-go Law Firm, LLC, Anthony David Irpino, Irpino Law Firm, Roderick Rico Alvendia, Jeanne Katherine Demarest, Law Office of Alvendia Kelly & Demarest, L.L.C., Val Patrick Exnicios, Liska Exnicios & Nun-gesser, Byron Rene Arthur, Arthur Law Firm, LLC, Rebecca M. Urrutia, Attorney at Law, Metairie, LA, for Plaintiff/Appellant.
    Franklin David Beahm, Jacob Kenneth Best, Beahm & Green, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN, Judge JOY COSSICH LOBRANO).
   EDWIN A. LOMBARD, Judge.

11 This is a premises liability and negligence action against Defendant/Appellee, Touro Infirmary, filed by Plaintiffs/Appellants, who are the relatives of decedent Michael Falcone. The Appellants seek review of the district court’s August 6, 2012 judgment affirming a jury verdict which found Touro Infirmary Hospital not to be negligent in the death of Michael Falcone. Finding that the verdict of the jury is neither manifestly erroneous nor clearly wrong, we affirm.

FACTS AND PROCEDURAL HISTORY

Educator Michael Falcone (“Mr. Fal-cone”) was a fifty-six (56) year old single man on August 12, 2005, when he presented for a routine physical and an echo stress test at an Ochsner Hospital (“Ochs-ner”) clinic for the 2005-2006 school year. The stress test revealed a Stanford Type A aortic dissection and an aneurysm of the ascending aorta. Thereafter, Mr. Falcone underwent corrective surgery performed by cardiothoracic surgeon, Dr. P. Eugene Parrino (“Dr. Parrino”) on Ochsner’s main campus. Mr. Falcone remained at Ochs-ner in the care of Dr. Parrino after his surgery.

12Mr. Falcone, who had been sedated with Propofol and other barbiturates, did not fully awake from his surgery in the days following the procedure. Moreover, it was discovered that he suffered an occipital stroke following surgery. He was intubated and due to pain, he was continuously sedated on Propofol and Morphine following the surgery. He was responsive to pain and was moving his extremities, but it was difficult for neurologic exams to be performed on him due to the sedatives he was taking. Dr. Parrino ordered that sedation and ventilation be stopped on August 22, 2005, and, that same day, Mr. Falcone awoke and began eye movement, pain withdrawal, and upper and lower body extremity movement. His condition gradually began to improve at Ochsner.

On August 25, 2005, Mr. Falcone was transferred to the Specialty Hospital of New Orleans (“SHONO”), which was an independently owned, long-term acute care hospital located inside of the main building of Touro Infirmary (“Touro”). SHONO and Touro were parties to a Lease Agreement, wherein SHONO leased the fourth floor and a portion of the seventh floor of Touro. Mr. Falcone was one of sixteen SHONO patients receiving care on the seventh floor of Touro when Hurricane Katrina made landfall.

The SHONO unit was primarily staffed by Sethany Johnson, a registered nurse, and Jacqueline Stampley, a licensed practical nurse, during and following the aftermath of Hurricane Katrina. Sequilla Gant, who is a licensed registered nurse, was the Chief Nursing Officer of SHONO. Nurse Gant was on the SHONO unit during Hurricane Katrina, but left the unit on Wednesday, August 31, 2005. Eight other SHONO employees left the SHONO unit.

As a result of Hurricane Katrina, the SHONO unit and Touro lost electrical power. The temperature rose on the SHONO unit and within Touro. It is disputed I,.¡between the parties as to whether Touro provided spot coolers, conditioned air or other mechanical cooling systems to the SHONO unit at that time. Mr. Fal-cone’s body temperature gradually rose to over 107 degrees Fahrenheit in the days following the loss of power to the premises. Mr. Falcone expired in the SHONO unit on September 1, 2005. His medical records list his cause of death as being “cardiopulmonary arrest 2° [secondary to] hyperthermia.”

The Appellants filed suit in December 2006 against SHONO and Touro seeking survival and wrongful death damages as a result of Mr. Falcone’s death. The Appellants later reached a settlement with SHO-NO and it was dismissed from the lawsuit. A jury trial was held from early to late July 2012, and the sole verdict of the jury was that Touro was not negligent. A judgment reflecting the verdict was signed by the district court on August 6, 2012. The Appellants filed a motion for appeal and this timely appeal followed.

The Appellants raise three (3) assignments of error on appeal:

1. the jury was manifestly erroneous in failing to find that the Appellants proved by a preponderance of the evidence that Touro was negligent;
2. the jury was manifestly erroneous in failing to find that the Appellants proved by a preponderance of the evidence that Touro’s premises during the aftermath of Hurricane Katrina were unreasonably dangerous; and
3. the jury was manifestly erroneous in failing to find that Touro, pursuant to its Lease and Services Agreements, was required to provide air conditioning and/or sufficient ventilation, and that Touro failed to provide same.

|4Standard of Review and Negligence Burden of Proof

Questions of fact as determined by the factfinder, be it a jury or a judge, are reviewed under the manifest error or clearly wrong standard of review. Sassone v. Doe, 11-1821, pp. 2-3 (La.App. 4 Cir. 5/23/12), 96 So.3d 1243, 1245. Furthermore, “where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong.” Sassone, 11-1821, p. 3, 96 So.3d at 1245. In order to reverse findings of the factfinder, “an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes the finding is clearly wrong.” Harold A. Asher, CPA, LLC v. Haik, 12-0771, p. 4 (La.App. 4 Cir. 4/10/13), 116 So.3d 720, 723-24 (citing S.J. v. Lafayette Parish Sch. Bd., 09-2195, p. 12 (La.7/6/10), 41 So.3d 1119, 1127). Lastly, we note that questions of law are reviewed de novo. See First Nat. Bank, USA v. DDS Const., LLC, 11-1418, pp. 10-11 (La.1/24/12), 91 So.3d 944, 952.

A plaintiff must prove five (5) separate elements in order to succeed on a negligence claim: (1) whether the defendant had a duty to conform his conduct to a specific standard of care; (2) whether the defendant’s conduct failed to conform to the appropriate standard of care [breach of duty]; (3) whether the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries; (4) whether the defendant’s substandard conduct was a legal cause of the plaintiffs injuries; and (5) whether the plaintiff was damaged. Milbert v. Answering Bureau, Inc., 13-0022, p. 8 (La.6/28/13), 120 So.3d 678 [citations omitted]. Thus, we address the arguments raised by the Appellants in their assignments of error by discussing whether the jury erred in its consideration of the aforementioned elements.

|R1. Duty to Conform to a Specific Standard of Care

The Appellants aver that Touro owed Mr. Falcone two main duties: a duty to provide adequate ventilation, and a duty to protect Mr. Falcone against unreasonable risks of harm.

a. Duty to provide ventilation

Regarding their argument that Touro owed a duty to Mr. Falcone to provide adequate ventilation, the Appellants principally rely upon a prior case decided by our Court, Serou v. Touro Infirmary, 12-0089 (La.App. 4 Cir. 1/9/13), 105 So.3d 1068. Serou involved a wrongful death and survival action filed on behalf of Mr. Falcone’s SHONO roommate, Gordon Serou, Sr. (“Mr. Serou”), who also expired following Hurricane Katrina.

The Appellants aver that this Court set forth a standard in Serou which establishes that Touro owed Mr. Falcone a duty to provide adequate ventilation. They contend that our Court established said duty based upon the testimony of Touro representative Scott Landry (“Mr. Landry”), who interpreted the requirements of the Lease Agreement and Services Agreement between SHONO and Touro.

In response, Touro argues that it leased half of its seventh floor to SHONO, an independent juridical entity, to operate a long term acute care facility. Touro concedes that it had a duty to provide ventilation, as this Court held in Serou, but it fulfilled this duty by providing fans and opening windows in Mr. Falcone’s room.

Duty is a question of law; the inquiry is whether the plaintiff has any law (statutory, jurisprudential, or arising from general principles of fault) to support the claim that the defendant owed him a duty. Perkins v. Entergy Corp., 98-2081, p. 22 (La.App. 1 Cir. 12/28/99), 756 So.2d 388, 404 (citing Faucheaux v. Terrebonne Consolidated Government, 615 So.2d 289, 292 (La.1993)). “As a question of law, duty is a legal question subject to de novo review on appeal”. Faulkner v. The McCarty Corp., 02-1337, p. 2 (La.App. 4 Cir. 6/11/03), 853 So.2d 24, 27.

In Serou, the plaintiffs, Mr. Serou’s surviving spouse and children, filed suit against SHONO, Touro and Aggreko LLC (“Aggreko”), which was Touro’s emergency generator services provider. Mr. Serou was a 67 year-old patient with Parkinson’s disease, dementia, and coronary artery disease. Mr. Serou was a resident of a nursing home where he received hospice care; however, Mr. Serou was admitted into SHONO while he was recovering from treatment for bedsores. He was declared dead on August 31, 2005, and his chart states that he too “expired 2° [secondary] to heat.” Serou, 12-0089, pp. 1-10, 105 So.3d 1068, 1074-1078.

The Serou plaintiffs filed suit against SHONO, Touro and Aggreko seeking wrongful death and survival damages; however, they later settled with both'SHO-NO and Aggreko. After a bench trial, the district court allocated fault amongst the defendants as follows: 70% to SHONO, 30% to Touro and 0% to Aggreko. The district court awarded the plaintiffs damages of $345,000 against Touro, who appealed the judgment. For the purposes of our discussion, we address only that portion of the appeal that involves the negligence claims the plaintiffs raised against Touro. Id.

On appeal, our court upheld the district court’s finding that Touro was negligent, reasoning that the evidence supported the district court’s finding that Touro had a duty to provide adequate ventilation for patients; however, we held that pursuant to the requirements of the Joint Commission of the Accreditation of 17Hospital Organizations (“JCAHO”), the ability to provide refrigerated air to any part of the hospital was not required. Id., 12-0089, p. 30, 105 So.3d at 1090.

Having already recognized that Touro owed a duty to SHONO patients to provide adequate ventilation, we find that the Appellants established jurisprudentially that Touro owed Mr. Falcone the same duty,

b. Duty to protect Mr. Falcone against unreasonable risks of harm

The Appellants maintain that our duty inquiry should focus on the broader issue of whether the environmental conditions on the SHONO unit were unreasonably dangerous. The Appellants contend that Touro had an obligation to provide whatever it could to prevent the premises from being unreasonably dangerous, whether that required providing air conditioning, spot coolers, ventilation or otherwise. The Appellants aver that Touro failed to provide the requisite safe premises. The Appellants additionally argue that Touro owed Mr. Falcone a duty to protect him against unreasonable risks of harm pursuant to two agreements that were in place between Touro and SHONO: a Lease Agreement and a Services Agreement.

The Appellants maintain that Touro, as the owner or operator of a facility, owed Mr. Falcone a duty to exercise reasonable care for the safety of persons on its premises and to not expose such persons such as Mr. Falcone to unreasonable risks |aof injury or harm under La. Civ.Code articles. 2317.1 and 2322 as well as Mundy v. Dep’t of Health & Human Res., 620 So.2d 811, 813 (La.1993). The Appellants contend that this duty was owed despite the fact that Mr. Falcone was not a Touro patient.

Touro maintains that even if it had a duty to maintain the SHONO unit in a reasonable safe condition, said unit was fit and reasonably safe at the time at issue.

With regard to the duty to protect against unreasonable risks of harm, the owner or operator of a facility generally has the duty of exercising reasonable care for the safety of persons on his premises and the duty of not exposing such persons to unreasonable risks of injury or harm. Manning v. Dillard Dep’t Stores, Inc., 99-1179 (La.12/10/99), 753 So.2d 163. Additionally, the owner or custodian must discover any unreasonably dangerous condition on the premises, and either correct the condition or warn potential victims of its existence. Smith v. The Runnels Schools, Inc., 04-1329, p. 4 (La.App. 1 Cir. 3/24/05), 907 So.2d 109, 112.

Nonetheless, the Supreme Court has further explained that an owner generally has no duty to protect against an open and obvious hazard. Pryor v. Iberia Parish Sch. Bd., 10-1683, p. 3 (La.3/15/11), 60 So.3d 594, 596 [citation omitted]. The Supreme Court has reasoned:

[T]he fact-finder, employing a risk-utility balancing test, determines which risks are unreasonable and whether those risks pose an open and obvious hazard. In other words, the fact-finder determines whether defendant has breached a duty to keep its property in a reasonably safe condition by failing to discover, obviate, or warn of a defect that presents an unreasonable risk of harm.
Because the determination of whether a defective thing presents an unreasonable risk of harm encompasses an abundance of factual findings, which differ greatly from case to case, followed by an application of those facts to a less-than scientific standard, a reviewing court is in no better position to make the determination than the jury or trial court.’

Broussard v. State ex rel. Office of State Bldgs., 12-1238, pp. 12-13 (La.4/5/13), 113 So.3d 175, 185-86. [Emphasis added and citations omitted]. Thus, if the facts of a particular case show that the complained-of condition should be obvious to all, the condition may not be unreasonably dangerous, and the defendant may owe no duty to the plaintiff. Pryor, 10-1683, pp. 3-4, 60 So.3d at 596 (citing Eisenhardt v. Snook, 08-1287 (La.3/17/09), 8 So.3d 541; Dauzat v. Curnest Guillot Logging, Inc., 08-0528 (La.12/2/08), 995 So.2d 1184.)

The trier of fact decides which risks are unreasonable based upon the facts and circumstances of each case. Id. Moreover, the ultimate determination of unreasonable risk of harm is subject to review under the manifest error standard. Id., 10-1683, p. 4 (La.3/15/11), 60 So.3d 594, 596 [citation omitted].

In the instant matter, the record shows that there was conflicting testimony presented as to whether Touro’s premises were unreasonably dangerous. For instance, Zan Green, who was employed by Touro as an HVAC mechanic and was on the premises in the aftermath of Hurricane Katrina, testified that he was | mpersonally monitoring all the floors within Touro. He testified that while some areas of the hospital were “warmer” than others, he would not describe the building as being hot. He further testified that Touro procured spot coolers, which were placed in certain areas, including nursing stations, to provide extra cooling. Mr. Landry also testified that spot coolers were provided. Mr. Green testified that he did not monitor the ambient temperature within the hospital and he relied on his body temperature as an indicator of the temperature of the building.

Additionally, Scott Landry (“Mr. Landry”), who was Touro’s director of facilities at the time of Hurricane Katrina, also testified that he was in the building during Hurricane Katrina. He testified that he cpnsistently made rounds through the building and the SHONO unit, and that the building was warm, but was not hot. He further explained that two (2) of Tou-ro’s six (6) generators went out of service, but the generator servicing the SHONO unit did not stop working. He testified that the same circuit that served the SHO-NO unit served four other Touro patient units; therefore, if something was substantially wrong with the service on the SHO-NO unit, the same problem would have occurred in Touro’s units. He further testified that Touro had over 100 fans, and that no request to provide a patient a fan was denied by him. Additionally, Mr. Landry explained that Touro followed the guidelines for hospital accreditation in cooling only portions of the Touro building, which did not include regular patient units, such as the SHONO unit. He testified that pursuant to a plan that was implemented in 2003, the SHONO unit was assigned two spot-coolers and these were indeed provided. Lastly, Mr. Landry testified that healthcare requirements do not include providing air conditioning during an emergency.

|nNurses Gant and Johnson, however, testified as to the following facts: 1) it was “ridiculously” hot on the SHONO unit; 2) the floors on their unit were slippery due to the heat; 3) there were no spot coolers on the SHONO unit, and 4) that they themselves were adversely affected by the heat in addition to the SHONO patients.

All of the witnesses who testified agree that the temperatures rose on the premises and that the windows were open on the seventh floor. There is no agreement, however, as to the extent of the heat on the seventh floor. When there are two permissible views of the evidence, the trier of fact’s choice between them cannot be manifestly erroneous. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). As the Supreme Court has explained, “it is not hard to prove a reasonable basis for a finding, which makes the manifest error doctrine so very difficult to breach.” Menard v. Lafayette Ins. Co., 09-1869, pp. 21-22 (La.3/16/10), 31 So.3d 996, 1011. In the matter sub judice, the jurors weighed conflicting testimony as to whether the temperature within the building rose to a level of constituting an unreasonably safe condition, but may have concluded that the heat was not an unreasonable risk of harm. Moreover, as noted above in Pryor, the jury may not have determined that the “heat” itself was an unreasonable condition if they perceived it as being an open and obvious hazard.

Moreover, regarding the Lease Agreement, the Appellants argue that the jury was manifestly erroneous and clearly wrong in its interpretation of the contract, which they argue required Touro to provide air conditioning to SHONO during and after Hurricane Katrina. They aver that the jury’s interpretation of the 112contracts impermissibly used extrinsic evidence, in violation of the terms of the agreements and in violation of La. Civ. Code art. 1848.

Touro responds that the duties and obligations owed to SHONO and its patients are solely contained in the Lease Agreement and a Services Agreement that was executed between the parties. Touro maintains that nowhere in either of those agreements was it required to provide central, refrigerated air conditioning to the SHONO unit during periods of external power failure. Likewise, Touro argues that it had no duty to provide central, refrigerated air conditioning for its patient population in the event of an external power outage. It contends that the jury properly found that Touro was not negligent as witnesses attested to the fact that Touro had no such obligations pursuant to the aforementioned agreements.

The Lease Agreement at issue states in pertinent part:

IX. Fixtures and Equipment. Lessor shall be responsible for all maintenance and repairs associated with the heating, ventilation, lighting, plumbing, electrical systems, air conditioning, gas, oxygen (oxygen equipment owned and operated by Lessor), water and sewage in the leased premises and shall be responsible for the entire cost of repairs and replacement of such equipment.

Furthermore, a Services Agreement between the parties dated June 27, 1997, contained the following emergency power clause:

9. Emergency Power Supply. Touro shall provide adequate emergency power supply and emergency electrical service to accommodate each patient bed of the leased premises specified in the Lease Agreement in accordance with applicable safety requirements and as customarily maintained in an acute care facility.

|1sAs noted above, there is conflicting testimony as to whether Touro fulfilled its obligation to supply the SHONO unit with emergency power. Additionally, it is unclear as to whether Touro’s obligation to provide “adequate” emergency power encompassed providing the SHONO unit with air conditioning during a power outage pursuant to the “applicable safety requirements and as customarily maintained in an acute care facility”. We note that Mr. Landry testified that he walked throughout the premises, including the SHONO unit, and that every patient room had a headwall or headboard that had electricity. Mr. Landry, however, could not recall whether Mr. Falcone’s room specifically had electricity going to the headboard. There was sufficient testimony provided, however, to provide the jury a reasonable basis for concluding that adequate emergency power was supplied to the SHONO unit, pursuant to the agreements in place.

Furthermore, in Serou, we reasoned that, under the requirements of the JCA-HO, the ability to provide refrigerated air to any part of the hospital was not required. Serou, 12-0089, p. 30, 105 So.3d at 1090. In reaching that holding, our Court considered the testimony of Mr. Landry who explained that the Lease Agreement and the Services Agreement that were in place between SHONO and Touro were inapplicable to situations where Touro itself was operating on emergency back-up power:

Mr. Landry acknowledged that, pursuant to the Lease and Services Agreement, Touro was responsible for providing emergency backup power and air conditioning to the SHONO unit, the leased space. However, he testified that it was not Touro’s responsibility to provide air conditioning to the SHONO unit when Touro was on emergency backup power, as it was post-Hurricane Katrina.' Mr. Landry explained that providing air conditioning in the event of an outside power failure was not a requirement under the JCAHO guidelines and for | j 4that reason, it was not included as a requirement under its contractual arrangements with SHONO. [Emphasis added.]

Id., 12-0089, p. 25, 105 So.3d at 1087.

Therefore, under a manifest error standard of review, we do not find that the jury was manifestly erroneous if it found that a duty to protect Mr. Falcone against an unreasonable risk of harm either did not exist or that Touro met its contractual obligations to protect Mr. Falcone against unreasonable risks of harm under the facts of this case. Nevertheless, we hold that the sole duty owed by Touro was to provide ventilation,' as per Serou.

2. Breach and Causation

We address the elements of breach and causation in this section as the jury in this matter considered conflicting testimony as to each of these elements. Factual findings, including breach of duty, cause-in-fact, and legal causation, are subject to the manifest error standard of review. Watters v. Dep’t of Soc. Servs., 11-1174, p. 4 (La.App. 4 Cir. 3/14/12), 102 So.3d 118, 123.

Having determined that Touro owed Mr. Falcone a duty to provide adequate ventilation, we address a compelling argument raised by the Appellants: there must have been inadequate ventilation for Mr. Fal-cone because our Court has already held that there was inadequate ventilation for Mr. Serou.

It is undisputable that Mssrs. Ser-ou and Falcone were subjected to the same conditions, although having distinct medical and physical conditions; thus, the Appellants’ argument seems sound. However, there is a marked difference between the procedural posture of Mr. Serou’s case and the instant one. When the Serou appeal was considered, the district court as the finder of fact determined that 11fiTouro was negligent and our Court reviewed that judgment under a manifest error standard. In the instant matter, the finder of fact, the jury, reached an outcome differing from that of the district court in Serou. The jury in this case determined that Tou-ro was not negligent and we too review that judgment under the manifest error standard. It is clear from Serou and the record in the instant matter that both finders of fact faced conflicting testimony regarding each element of negligence the Serou and Falcone Appellants were required to establish.

As discussed above, there was a basis in the record for the jury to find that Touro provided adequate ventilation to the SHONO unit. Mssrs. Green and Landry discussed that the premises were monitored and that spot coolers were provided. Mr. Green further explained that the windows on the seventh floor were crank-operated, and thus, could be opened. Tou-ro also presented the following testimony as to the conditions on the SHONO unit and on the premises in general:

• Dr. Victor E. Tedesco testified that there were spot coolers throughout the facility, including at least one on the SHONO unit. He further testified that the temperature on the SHONO unit was warmer than the hospital is normally, but it was not that uncomfortable.
• Nurse Johnson testified that there was some electrical power on the SHONO unit on August 31, 2005, and that there was sufficient electrical power to run fans at noon on August 31, 2005, as well as use lights in the nursing station adjacent to Mr. Falcone’s room. Nurse Johnson further testified that the windows in Mr. Falcone’s room were open and a fan and ice packs were being used to cool Mr. Falcone.

[1fiIf the jury believed any of the aforementioned testimony or testimony from other witnesses and experts that substantiated Touro’s position that it did meet its duty to provide ventilation, the jury had a basis to determine that there was not a breach of duty. As discussed above, the fact finder’s decision cannot be manifestly erroneous where there are two permissible views of the evidence. Thus, we do not find that Touro breached its duty to provide ventilation.

Similarly, we note that the Appellants cannot establish that the jury erred in its determination that Touro’s actions were not the cause in fact or legal cause of Mr. Falcone’s death. A plaintiff in a tort case must prove causation by a preponderance of the evidence. Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La.1993). To meet the cause-in-fact element, a plaintiff must prove only that certain conduct was “a necessary antecedent of the accident, that is, but for the defendant’s conduct, the incident probably would not have occurred.” State Farm Mut. Auto. Ins. Co. v. LeRouge, 07-0918, p. 18 (La.App. 4 Cir. 11/12/08), 995 So.2d 1262, 1275 [citation omitted]. Moreover, the essence of the legal cause inquiry is whether the risk and harm encountered by the plaintiff fall within the scope of protection of the duty. Id., 07-0918, pp. 18, 995 So.2d at 1275-76.

In this matter, the jury was presented with conflicting testimony from at least two of Mr. Falcone’s treating physicians, Dr. P. Eugene Parrino, the cardio thoracic surgeon who performed Mr. Fal-cone’s heart surgery, and neurologist John L. Freiberg (“Dr. Freiberg”). As treating physicians, the testimony of both doctors were entitled to greater weight than the testimony of Mr. Falcone’s non-treating physicians. See Menard v. Lafayette Ins. Co., 09-1869 (La.3/16/10), 31 So.3d 996.

|17The Appellants principally rely upon the testimony of Dr. Parrino to support their argument that Touro’s unreasonably dangerous premises were both the legal cause and cause in fact of the death of Mr. Falcone, who they aver was a healthy 56 year old. Dr. Parrino, the Appellants aver, treated Mr. Falcone for longer than any other witness at this trial and therefore his opinion should be given more credibility. Dr. Panino retained control of Mr. Falcone’s care throughout his stay at Ochsner from August 12, 2005 through August 25, 2005 when Mr. Falcone was transferred to SHONO.

Dr. Parrino testified that he performed the August 12, 2005 surgery to correct Mr. Falcone’s aortic aneurysm. The operation went well and Dr. Parrino successfully reconstructed Mr. Falcone’s aorta. Mr. Fal-cone was taken to the ICU and that night he suffered an arrhythmia, but was properly resuscitated. Mr. Falcone was on heavy sedation for the 10 days following the August 12, 2005 surgery and did not “wake up” from the surgery until August 22, 2005, at which point he was taken off of heavy sedation as well as the ventilator.

The Appellants aver that Dr. Parrino emphatically testified that the neurological tests performed while Mr. Falcone was heavily sedated were not an accurate reflection of Mr. Falcone’s potential for recovery. Dr. Parrino testified that when he discharged Mr. Falcone on August 25, 2005, Mr. Falcone’s heart was stable, he had awoken from the coma and was more alert, he was following commands, and he was improving neurologically.

Dr. Parrino testified, after reviewing the SHONO records, that Mi’. Falcone had no fever prior to Katrina and had a normal white blood cell count; therefore he felt “very strongly” that there was not likely an infection. Nevertheless, Dr. Parrino explained in his testimony that he started Mr. Falcone on Vancomycin and | iSantibiotics as a prophylactic as a precautionary measure. He opined that Mr. Fal-cone continued to improve neurologically at SHONO prior to Hurricane Katrina.

The Appellants aver that Dr. Parrino also clarified that upon Mr. Falcone’s discharge to SHONO, Mr. Falcone was not terminally ill. Thus, a fair and reasonable reading of the record is that Mr. Falcone was improving and had significant brain function prior to Hurricane Katrina. Lastly, they aver that Mr. Falcone’s medical records state that he expired from hyperthermia because said records reflect that a treating physician listed his cause of death as: “cardiopulmonary arrest 2° [secondary to] hyperthermia.”

Although Dr. Parrino did testify to the facts indicated above, we note that the jury was presented with other testimony as to Mr. Falcone’s medical condition immediately before his death from one of his last treating physicians, Dr. Freiberg, who began treating Mr. Falcone on August 26, 2005.

Dr. Freiberg characterized Mr. Falcone as a critically ill patient with multiple life-threatening problems. Indeed, he opined that Mr. Falcone had septicemia or sepsis, which he explained usually has effects on the nervous system. He testified that Mr. Falcone’s sepsis impacted his nervous system. He further explained that Mr. Fal-cone’s septic condition “was one of the reasons his [Mr. Falcone’s] brain, mental functions was so poor.” He opined that Mr. Falcone’s cause of death was his infection. Dr. Freiberg testified that Mr. Fal-cone was being treated for an infection and had documented bacteria in his blood.

Additionally, he expounded that Mr. Fal-cone’s behavior was not that of someone who had suffered a minor stroke. He opined that Mr. Falcone’s aortic | ^surgery was less than a hundred percent successful because Mr. Falcone did get “catastrophic” brain damage from the surgery.

Dr. Freiberg testified that a lack of basic services at Touro contributed to Mr. Falcone’s death as well as the heat in the hospital. However, he testified that the heat was not a main factor in Mr. Fal-cone’s death. He testified that the root cause of Mr. Falcone’s death was a severe aortic problem and the complications of the surgery that left Mr. Falcone in a completely debilitated state.

In the matter sub judice, the record reflects that the jury was again presented with conflicting testimony. While Dr. Par-rino testified that Mr. Falcone was in good health, that his surgery was successful, his condition was gradually improving, and that heat and a lack of ventilation caused his death, Dr. Freiberg opined that Mr. Falcone’s aortic surgery was unsuccessful, he had sepsis, suffered a severe stroke and that the temperature in the hospital did not cause his death. We recognize that the jury had a reasonable basis for concluding that even if Touro failed to provide adequate ventilation to Mr. Falcone, that this failure was neither the cause-in-fact nor the legal cause of Mr. Falcone’s declining health and his death. While a different trier of fact may have reached another conclusion when presented with the same testimony and evidence, there is a basis in the record for the jury in the instant case to have made this determination. Thus, we do not find that the jury was manifestly erroneous or clearly wrong in determining that the elements of cause-in-fact and legal cause were not established.

The Appellants failure to establish that the jury manifestly erred when it determined that one or more of the negligence elements was not met was sufficient to defeat this negligence action. Thus, we pretermit a discussion of damages.

|2qDECREE

For the foregoing reasons, the judgment of the district court, adopting the jury verdict and finding that Touro Infirmary was not negligent in the death of Michael Falcone, is affirmed.

AFFIRMED.

      . The Appellants are Michael Falcone’s parents, Vincent Falcone, Sr., and Dorothy Fal-cone, and his siblings, Mary Falcone Morgan, Christine Impastato, Daniel A. Falcone, Stephen J. Falcone, Peter J. Falcone, Dorothy Trocquet, Susan Falcone Bourgeois and Vincent Falcone, Jr.

      . Hyperthermia means elevated body temperature, as explained by Nurse Johnson.

      . Adequate ventilation or conditioned air is air that is being filtered or moving. In Serou, our court noted that there is a distinction between refrigerated or chilled air and conditioned or moved air. Id., 12-0089, p. 26, 105 So.3d at 1088.

      . La. C.C.P. art. 2317.1 states:
      The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.
      La. C.C.P. art. 2322 states:
      The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

      . La. Civ.Code art. 1848 provides:
      Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature. Nevertheless, in the interest of justice, that evidence may be admitted to prove such circumstances as a vice of consent or to prove that the written act was modified by a subsequent and valid oral agreement.

      . We further note that Nurse Johnson testified that she was administering fluids to Mr. Fal-cone through an IV bag that she had adjusted. She placed cool towels over his body and dampened his lips to decrease his temperature. She also testified that when the generators failed the box fans did not work.


author: DENNIS R. BAGNERIS, SR., Judge. LEDET, J., BELSOME, J., JENKINS, J.,

text:
    MOORING TAX ASSET GROUP, L.L.C. v. Roderick A. JAMES and the United States Department of Treasury-Internal Revenue Service.
    No. 2013-CA-0607.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 6, 2013.
    Rehearing Denied Dec. 18, 2013.

      Scott Joseph Sonnier, Beirne, Maynard & Parsons, L.L.P., New Orleans, LA, for Plaintiff/Appellant, Mooring Tax Asset Group V, L.L.C.
    James M. Garner, Elwood F. Cahill, Jr., John T. Balhoff, II, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., New Orleans, LA, for Defendant/Appellee, Roderick A. James.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME, Judge DANIEL L. DYSART, Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS). ■
   DENNIS R. BAGNERIS, SR., Judge.

11 This appeal arises out of the trial court’s nullification of a tax sale by the purchaser, Mooring Tax Asset Group (Mooring), and the judgment that granted the Motion To Contest Costs of defendant/appellee, Roderick James, a subsequent purchaser of the property. Mooring appeals that portion of the judgment that provided that no taxes, costs, interest, or penalties were owed to or to be reimbursed to Mooring; that Mr. James was not responsible for any amount due to the tax purchaser under La. Const. Art. VII, § 25(C); and that the declaration of the nullity was to be effective immediately. Finding no error in the judgment, we affirm.

FACTS/PROCEDURAL HISTORY

On September 22, 1997, Charles and Connie Brown purchased the residential immovable property located at 7047 Lake Willow Drive in New Orleans, Louisiana, pursuant to a “Cash Sale of Property.” The Cash Sale of Property was recorded in the Orleans Parish Conveyance Records on September 27, 1997. The City alleged that the Browns became delinquent on their property 12taxes. Thereafter, Mooring bought the property at a tax sale on November 8, 2004 (2004 Tax Sale). The City Tax Collector executed a tax deed that purportedly conveyed the property to Mooring on December 21, 2004 (2004 Tax Deed); the tax deed was recorded in the Conveyance Records on April 25, 2005.

Seemingly unaware of these events, the Browns sold the property to NARA, L.L.C. pursuant to a “Cash Sale.” The sale was recorded in the Orleans Parish Conveyance Records on April 23, 2007. Subsequent thereto, NARA sold the property to Mr. James on June 9, 2008; his sale was recorded on June 18, 2008.

Mooring filed its Petition to Quiet Title on May 21, 2010, seeking to terminate Mr. James’ interest in the property. The suit alleged that Mr. James failed to timely redeem the property from the 2004 Tax Deed that was recorded on April 25, 2005. In response, Mr. James filed an Exceptions and Answer to Petition to Quiet Title and Reconventional Demand pleading. It alleged in part that the sale should be nullified due to lack of sufficient pre-sale notice and for lack of sufficient pre-sale advertisement. Mr. James filed a motion for summary judgment on these grounds. After a hearing, the trial court granted the motion and ruled that the 2004 Tax Sale and the 2004 Tax Deed were absolute nul-lities.

Mooring contended that the declaration of nullity should be preliminary, rather than a final judgment, until it was paid costs that were allowed pursuant to La. R.S. 47:2291. Mr. James responded that La. R.S. 47:2291 did not apply to |3the present matter because the statute was only applicable to tax sales that occurred after January 1, 2009. However, Mr. James conceded that under some conditions, La. Const. Art. VII, § 25(C) delays the effects of a tax sale nullification until certain costs are paid to the purchaser. Accordingly, the trial court issued a judgment allowing Mooring to submit proof of costs and allowing Mr. James to contest costs.

On January 18, 2013, Mooring submitted an “Affidavit of Proof of Cost Pursuant to La. R.S. 47:2291(B)(3)The Affidavit alleged total costs of $37,495.95. Mr. James countered in his Motion to Contest Costs that Mooring had not made a true claim for costs; and that even if Mooring made such a claim, it was not entitled to recover costs where the tax sale was an absolute nullity. Mr. James added that in the event costs and taxes were owed, they were not recoverable from |4a third-party purchaser, such as Mr. James, who had no interest in the property at the time of the tax sale.

The matter came for hearing on February 25, 2013. Upon hearing argument, the trial court granted Mr. James’ Motion to Contest Costs. It found that the 2004 Tax Sale and the 2004 Tax Deed were absolute nullities; therefore, Mooring was not owed or entitled to be reimbursed for taxes, costs, interest, or penalties. The court then ordered the cancellation of the 2004 Tax Sale Deed from the Conveyance Record, which gave immediate effect to the declaration of nullity. This appeal followed.

Mooring’s appeal does not contest that the tax sale of the property was an absolute nullity. Instead, Mooring argues that the judgment erred in granting Mr. James’ Motion to Contest Costs and in giving immediate effect to the declaration of nullity-

DISCUSSION

Mooring’s first assignment of error represents that the trial court erred when it found that nothing was due to Mooring and failed to set the amount due pursuant to La. R.S. 47:2291. Mooring points out that the purpose of this statute is to determine the costs owed to the tax sale pur-ehaser in the event there is a judgment of nullity. While Mooring properly states the intent of the statute, this Court agrees with Mr. James that the statute does not apply to the present case. As noted by Mr. James, La. R.S. 47:2291 was a part of a legislative overhaul of tax sale statutes that became effective on January 1, 2009. The changes in these [ statutes were substantive in nature; and thus apply prospectively only. See La. C.C. art. 6. Consequently, because the disputed tax sale in this ease happened in 2004, Mooring is not entitled to any relief afforded by La. R.S. 47:2291.

Although Mooring may not be entitled to any relief allowed by La. R.S. 47:2291, Mooring’s next assignment of error asserts that La. Const. Art. VII, § 25(C) gives it another mechanism to recover its tax sale expenditures. It argues that the constitution provides that as the tax sale purchaser, Mooring is entitled to reimbursement for the tax sale purchase price, subsequent annual taxes paid, and for interest on those amounts. As a result, Mooring claims the district court erred in finding that Mr. James, as the current owner, was not required to reimburse Mooring based on the court’s determination that the tax sale was an absolute nullity.

In support of its position, Mooring cites this Court’s decision in Brookewood Investments Co. v. Sixty-Three Twenty-Four Chef Menteur Highway, LLC and Jacob V. Morreale, 2012-1205 (La.App. 4 Cir. 1/16/13), 108 So.3d 329. Brookewood held that the tax purchaser’s right of redemption was solely against the tax debtor or record owner of the property. Accordingly, this Court must decide, whether based on Brookewood, La. Const. Art. VII, § 25(C) compels Mr. James as a third party purchaser, to reimburse Mooring for his tax sale expenditures before the annulled tax sale can be given effect. We find that it does not. Based upon our review, the facts in Brookewood are distinguishable from the case at bar and moreover, its holding does not require Mr. James, who was neither | Bthe record property owner nor the tax debtor at the time of the 2004 Tax Sale, to reimburse Mooring any costs.

In Brookewood, the trial court nullified a tax sale because the City had failed to comply with notice requirements. At the time of the 2003 tax sale, the property was still assessed in the name of V.A. Morr-eale, although Sixty-Three had become the actual property owner in 1994. Brooke-wood Investments, the tax sale purchaser, argued that the trial court erred in determining that La. Const. Art. VII, § 25(C) limited it to seek reimbursement costs only against the tax debtor and not against the City. Instead, Brookewood Investments claimed that because the tax sale was a nullity, La. C.C. art.2033 required that the parties be placed in their original position, which meant that the City should reimburse Brookewood Investments for the amount that it had paid the City for the tax sale. However, this Court rejected that argument. The opinion relied on the Supreme Court’s decision in Lindner v. City of New Orleans, 116 La. 372, 40 So. 736 (1906) and its progeny to limit the tax purchaser’s right of reimbursement after a tax sale nullification to the tax debtor/record property owner. Brookewood, in citing the Lindner opinion, stated:

A tax sale, in the absence of special legislation to the contrary, is generally held to be subject to the rule caveat emptor, and the purchaser assumes the risk of all legalities and irregularities in the proceedings, of which, as they are open to his inspection, he is presumed to have notice. He is therefore without recourse against the municipality at the instance of which the sale is made, and which, not pretending to sell its own property, warrants neither the title nor the return of the price. [Citations omitted; emphasis added.]
Id. See Riddell v. City of New Orleans, 8 Teiss. 3, 8 Orleans App. 3, 1910 WL 1592 (La.App.Orl.1910) (holding that Lindner was “correctly decided that ... the only remedy of the purchaser at a tax sale afterwards annulled, was to reclaim from the owner, the |7purchase price paid.” [Emphasis added.]); Riddell v. Ringe, 11 Teiss. 157, 1914 WL 1935 (La.App.Orl.1914)(pursuant to Art. 233 of the Constitution of 1913, the tax debtor must reimburse all costs expended by the purchaser at the tax sale before the former can get benefit of judgment annulling the tax sale); In re Land Development Co. of La., 12 Teiss. 147, 1915 WL 1633 (La.App.Orl.1915)(holding that a judgment annulling a tax sale has no effect until the tax debtor reimburses to the tax purchaser the price and all taxes paid by him with interest as provided by the constitution); Mattern v. Parqutt, 10 La.App. 769, 771, 123 So. 189, 190 (La.App.Orl.1929)(applying La. Const. Art. X, § 11 (1921)) (a judgment annulling a tax sale could not be executed until the tax debtor paid to the tax purchaser the amount paid by the latter for the property at the tax sale, and all taxes, with interest at the rate of ten per cent per annum on all items); Robinson v. Zor, Inc., 174 So.2d 154, 157 (La.App. 4th Cir.1965); Garry v. Zor., 181 So.2d 828, 832-33 (La.App. 4th Cir.1966).

Brookewood, 2012-1205 at pp. 10-11, 108 So.3d at 335.

In the present matter, Mooring argues that because Brookewood stated that the tax purchaser’s right of redemption was against the tax debtor or record owner of the property, Mr. James should be compelled to pay its costs because Mr. James is the current property owner. However, a careful reading of Brookewood, Lindner, and the other cases referenced herein limits the tax purchaser’s right of redemption to the tax debtor; the record property owner’s liability results only from his status as the tax debtor. These decisions highlight that the purpose of the statutes that delay the effect of an annulled tax sale until the tax debtor reimburses the tax purchaser all statutory expenditures owed is to ensure that the tax debtor |sdoes not get unjustly get the benefit of nullification, ie. property ownership with a clear title, by avoiding his tax obligations. See Riddell v. Ringe, supra. Mr. James’ status as a subsequent purchaser and the current property owner does not meet that purpose.

Indeed we find that in the present matter, Mooring has even a lesser claim for recovery against Mr. James, as the third-party purchaser, than Brookewood Investments had against the City in the Brookewood case. Mr. James was not the record owner of the property and had no obligation to pay taxes on the property at the time of the 2004 Tax Sale. Mr. James made no warranties to Mooring to induce it to purchase the property. He did not warrant the title to the property nor the return of the purchase price. Although Mooring suggests that Mr. James benefit-ted because it paid the property’s outstanding tax liability, a tax sale, absent special legislation, is generally subject to the rule of caveat emptor where the purchaser assumes the risks of all legalities and irregularities in the proceedings. See Lindner, 116 La. 372, 40 So. at 736.

In determining who is required to pay whom in this tax sale nullification, we conclude that no special legislation existed at the time of the 2004 Tax Sale and the 2004 Tax Deed, including Const. Art. VII, § 25(C), that would require Mr. James as a subsequent third-party purchaser to reimburse Mooring. Therefore, this Court need not decide whether the trial court erred in granting the Motion To Contest Costs on the grounds that the underlying tax sale was an absolute nullity. Appellate courts review the correctness of the judgment, rather than the reasons for the underlying judgment. Schurr v. O’Dwyer, 09-24, p. 4 (La.App. 5 Cir. 9/3/09), 22 So.3d 959, 960-961. In the instant case, Mr. James breached no duty |9owed to Mooring. Hence, the trial court properly decided that Mr. James was not responsible for reimbursing Mooring.

We next review Mooring’s last assignment of error that alleges the trial court erred when it ruled that the judgment was to be effective immediately and that the subject Tax Deed was to be canceled prior to the payment of any amounts due to Mooring. However, in light of our finding that Mooring has no reimbursement remedy against Mr. James and the tax debtor was not a party to this litigation, the trial court did not err in giving immediate effect to the judgment of nullification.

Wherefore, based upon the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

LEDET, J., Concurs With Reasons.

BELSOME, J., Dissents With Reasons.

JENKINS, J., Dissents.

LEDET, J.,

Concurs with Reasons.

[J agree with the result reached by the majority. Absent a showing of bad faith or knowledge of the tax sale, a third-party purchaser, such as Mr. James, has no liability to a tax sale purchaser for its costs. The tax sale purchaser’s claim for its costs is against the original property owner.

BELSOME, J.,

Dissents with Reasons.

|,I respectfully dissent from the majority opinion. More specifically, I find that the trial court erred in issuing a final judgment of nullity, and ordering the cancellation of the 2004 Tax Sale Deed from the conveyance and archives records. LA. Const. Art. VII § 25(C) states in relevant part:

No judgment annulling a tax sale shall have effect until the price and all taxes and costs are paid, and until 10 % per annum interest on the amount of the price and taxes paid from the date of the respective payments are paid to the purchaser; however, this shall not apply to sales annulled because the taxes were paid prior to the date of sale.

Since the sale was annulled for failure to meet notification and advertisement requirements rather than prior payment before the tax sale, the judgment of nullity cannot be effective until the tax purchaser is paid. See LA. Const. Art. VII § 25, supra. Accordingly, I would vacate the trial court’s final judgment annulling the tax sale, including the cancellation of the 2004 Tax Sale Deed, and remand the case for further proceedings.

JENKINS, J.,

Dissents.

|,I respectfully dissent for the reasons assigned by Judge Belsome.

      . La. R.S. 47:2291 provides in pertinent part that upon the conclusion of the action for nullity, the court shall:
      A. ...
      (1) Issue a preliminary order that the tax sale, an acquisition of full ownership by a political subdivision, or a sale or donation of adjudicated property, as applicable, will be declared a nullity.

      B. ...
      (3) Within fifteen days after the rendering of the order under Paragraph (A)(1) of this Section, the party claiming costs shall submit proof of costs. Proof of costs may be made by affidavit or other competent evidence and may be contested by the party claiming the nullity. A contest of costs shall be filled within fifteen days after the filing of the proof of costs, and the contest shall be heard within forty-five days after the filing of the proof of costs.
      (4) Within sixty days after the issuance of the order pursuant to Paragraph (A)(1) of this Section, the court shall render a judgment of nullity, and the judgment shall fix the costs allowed. This judgment shall be a final judgment subject to appeal.

      . La. Const. Art. VII, § 25(C) states that:
      No judgment annulling a tax sale shall have effect until the price and all taxes and costs are paid, and until ten percent per annum interest on the amount of price and taxes paid from the date of respective payments are paid to the purchaser; however, this shall not apply to sales annulled because the taxes were paid prior to the date of the sale.

      . La. C.C. art. 6 provides that ''[i]n the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.”

      . Upon remand, this Court reaffirmed its holding that the purchaser’s right of reimbursement was solely against the tax debtor as record owner. The matter was remanded for reconsideration in light of the Supreme Court’s holding in Smitko v. Gulf South Shrimp, Inc., 2011-2566 (La.7/2/12), 94 So.3d 750. Smitko held that the former property owner was not time-barred in his request to nullify a tax sale because the tax sale was an absolute nullity for lack of proper notice. The opinion noted that La. R.S. 47:2153C(1) which now gives the tax purchaser the right to seek reimbursement from the tax collector when the tax collector fails to give proper notice was not in effect at the time of the Brookewood Investments’ disputed tax sale. Hence, the Smitko decision did not change its opinion that Brookewood Investments’ right of reimbursement rested against the tax debt- or. Brookewood Investments Co., L.L.C. v. Sixty-Three Twenty-Four Chef Menteur Highway, L.L.C., 2012-1205 (La.App. 4th Cir. 5/15/13), 116 So.3d 899.


author: ROLAND L. BELSOME, Judge.

text:
    Lance Paul ROBEAUX v. Trechel Lejeune ROBEAUX.
    No. 2013-CA-0404.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 6, 2013.

      Wiley J. Beevers, Raylyn R. Beevers, Jared M. Newchurch, Steven M. Mauterer, Shayna L. Beevers, Britton R. Wight, Beevers & Beevers, L.L.P., Gretna, LA, for Plaintiff/Appellant.
    Rachel C. Marinovich, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   ROLAND L. BELSOME, Judge.

|, In this domestic proceeding, the plaintiff/appellant appeals two trial court judgments involving a community property partition and child support, For the reasons that follow, the community property partition judgment is reversed in part; amended and rendered. Additionally, the judgment denying Mr. Robeaux a reduction in child support is reversed in part, and remanded.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Lance Robeaux, the plaintiff, and Tre-chel Robeaux, the defendant, were married on June 18, 1994, and had two children during their marriage. Mr. Robeaux filed for divorce on April 29, 2005. Ms. Ro-beaux later filed her own petition for divorce in October of 2006. A divorce was granted on November 9, 2006. Shortly thereafter, the parties entered into a consent judgment, establishing custody, visitation, and child support. The parties filed their sworn detailed 12descriptive lists in September and October of 2007, which they later amended in 2012.

On November 7, 2011, Mr. Robeaux filed a motion for a reduction in child support. He later filed a “Rule to Show Cause Why Child Support Payments for Dillon Ro-beaux Should Not Be Suspended.” After a two-day trial on the community property partition and support issues, post-trial memoranda were filed. The trial court subsequently rendered two separate judgments on November 9, 2012. In the first judgment, which addressed the community property partition, Mr. Robeaux was ordered to pay an equalizing payment of $19,654.27, together with attorney’s fees of $2,000.00. In the second judgment, the trial court denied Mr. Robeaux’s motions to decrease and/or suspend child support. This appeal follows.

DISCUSSION

Mr. Robeaux asserts ten assignments of error. The first six assignments involve the community property partition. The remaining four involve the refusal to reduce or suspend child support.

\,.COMMUNITY PROPERTY PARTITION

As it relates to the community property partition, Mr. Robeaux’s assignments of error involve his military retirement, and reimbursement claims that were not awarded to him. With regard to the military retirement, Mr. Robeaux asserts that the trial court erroneously found that Ms. Robeaux was entitled to one-half of Mr. Robeaux’s military retirement. Mr. Ro-beaux contends that he participated in this retirement before and after the marriage; therefore, Ms. Robeaux is only entitled to half of the retirement accrued during the marriage, in accordance with the formula set forth in Sims v. Sims, 358 So.2d 919 (La.1978).

In response, Ms. Robeaux notes that the trial court awarded Mr. Robeaux “]/¿ Military Retirement (earned during the marriage),” and Ms. Robeaux l% Military Retirement.” She argues that though the trial court did not again specify “earned during the marriage” as it related to her portion of the retirement, the court’s intent to divide between the parties only the portion earned during the marriage was clear.

|4Since the parties both agree, and the judgment is incorrect in awarding Ms. Robeaux half of the military retirement without limitation, we amend the judgment to clarify that Ms. Robeaux is only to receive one-half of the portion of Mr. Ro-beaux’s retirement earned during the marriage in accordance with the Sims formula.

REIMBURSEMENT CLAIMS

Next, Mr. Robeaux asserts that the trial court failed to award reimbursement claims for: 1) one-half of $24,334.42 of unused Hurricane Katrina insurance proceeds received by Ms. Robeaux; 2) $21,660.00 for payment of community debts while he was in Iraq during 2005 and 2006; 3) $4,479.89 for payment of the loan to Regions Bank which encumbered a boat owned by the community; 4) $12,295.00 for payment of the parties’ community credit card debt amassed during the marriage; and 5) $11,500.00 in community assets, which were in Ms. Robeaux’s possession.

The trial court is vested with great discretion in effecting a fair partition of community property. Gallaty v. Gallaty, 11-1640, pp. 3-4 (La.App. 4 Cir. 10/3/12), 101 So.3d 501, 504 (citations omitted). An appellate court may not set aside a trial court’s findings of fact in absence of manifest error or unless they are cleaxiy wrong. Id. (citation omitted). It is well settled that a trial court has broad discretion in adjudicating issues raised in a judicial partition proceeding under La. R.S. 9:2801. If the trial court’s valuations of community assets ax-e reasonably | ¡-.supported by the l-ecord and do not constitute an abuse of discretion, its detei'mi-nations should be affirmed. Id. (citations omitted).

Mr. Robeaux contends that he is entitled to one-half of the unused insurance proceeds Ms. Robeaux received to repair damage to the community home caused by Hurricane Katrina. He asserts that $24,334.42 of the proceeds l’emained after innovations, and Ms. Robeaux used this money to supplement her living expenses. The trial court found that the claim was prescribed and refused Mr. Robeaux’s reimbursement claim.

Significantly, Mr. Robeaux did not file for an accounting under La. C.C. art. 2369, but filed to partition the community property under La. R.S. 9:2801 at the same time he filed for divorce, on April 29, 2005. When he filed his original descriptive list in 2007, he listed a claim for the entire amount of the proceeds, $42,367.58. When he filed his amended descriptive list in 2012, he listed a claim for the remainder of the proceeds, $24,334.42. Under these circumstances, La. C.C. art. 2369 is not applicable. See Roge v. Roge, 604 So.2d 721 (La.App. 2 Cir.1992) (whei-e the coui't found that the prescriptive pei-iod set forth in art. 2369 did not apply where former wife filed for partition of community property rather than for accounting). Accordingly, we find that the trial court abused its discretion in finding that Mr. Robeaux’s claim for his half of the remaining proceeds was prescribed due to his failure to timely file an accounting.

|fiIt went uncontested at trial that Ms. Robeaux received $42,367.58 in insurance proceeds after the termination of the community propex-ty i“egime. Ms. Ro-beaux did not dispute that she renovated her home with the money, and she agreed that she used the l’emaining $24,000.00 to supplement her living expenses. Therefore, the trial court’s judgment is hereby-amended to reflect that Mr. Robeaux is entitled to a reimbursement offset of $12,167.21 for half of the remainder of the insurance proceeds expended by Ms. Ro-beaux.

The next three reimbursement claims involve the separate satisfaction of community debt. Debts incurred during the community property regime are presumed to be community obligations. La. C.C. art. 2361. If separate property of a spouse has been used either during the existence of the community property regime or thereafter to satisfy a community obligation, that spouse is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used. La. C.C. art. 2865.

Mr. Robeaux claims he is owed reimbursement for $21,660.00 paid to Ms. Robeaux for the payment of community debts after the termination of the community. He contends that he paid these sums during a period between August 2005 and September 2006, while he was serving in Iraq. Therefore, he seeks $10,830.00 in reimbursement.

|7There is nothing in the record to show that the money at issue was used to pay community debts. Thus, we cannot say that the trial court abused its discretion in refusing to reimburse Mr. Robeaux for one-half of that amount.

Next, Mr. Robeaux claims that he is entitled to a $12,295.00 credit for his separate payment of various community liabilities, and a $4,479.89 credit for his satisfaction of the mortgage on a community boat. He argues that his testimony sufficiently proved that the debt was community debt that he consolidated and satisfied that debt.

The trial court denied the consolidated credit claims based on a lack of evidence. The only evidence admitted was a Consolidated Credit Counseling Services Statement of payments made from March of 2006 through April of 2008, after the termination of the community. Though the debts may have arisen during the community regime, Mr. Robeaux submitted nothing at trial to support that the debts were paid with separate funds.

Mr. Robeaux contends that his testimony asserting that the consolidated debt was all community debt went uncon-troverted at trial; and therefore, it should be accepted as true. However, the record reflects that Ms. Robeaux only acknowledged the Home Depot debt and MBNA debt, which were the only items included on her descriptive list, as belonging to the community. In accordance with Ms. Ro-beaux’s testimony, the trial court reasonably allocated the two | «undisputed debts to the community. Given the testimony and lack of evidence, we cannot find that the trial court abused its discretion in failing to reimburse Mr. Robeaux for the remaining consolidated debt.

Mr. Robeaux further asserts that he is entitled to a reimbursement in the amount of $4,479.89 for his separate payment of the community’s boat mortgage. He further contends that the trial court erred in failing to credit him for one-half of this amount.

At trial, Mr. Robeaux testified that although it was a violation of the court’s injunction, he sold the boat for $2,000.00 sometime after he returned from Iraq. He explained that he had been paying the note on the boat, and the boat was not operational. He applied the funds from the sale to satisfy the community’s boat loan from Regions Bank. Plaintiffs Exhibit Two establishes that the Regions Bank loan was paid in full on November 28, 2007. In its judgment, the trial court allocated the community boat to Mr. Ro-beaux, and credited its value to Mr. Ro-beaux at $2,000.00. Though the record establishes that Mr. Robeaux used his separate property to make payments on the boat loan, there is no evidence in the record to establish the amount of these payments. Thus, we do not find that the trial court abused its discretion in failing to reimburse Mr. Robeaux for sums not clearly ascertainable by the record.

| flLastly, Mr. Robeaux asserts that the trial court failed to recognize all of the community’s assets, primarily home furnishings. He maintains that these items remained in the home, and in Ms. Ro-beaux’s possession.

At trial, Ms. Robeaux denied being in possession of virtually all of the furnishings, except the china. She testified that these items were left in the family home when she moved out and Mr. Robeaux moved back into the home, pursuant to the mandates of the court. There was also evidence to establish that Mr. Robeaux destroyed the master bedroom furniture.

Based on the evidence, the trial court was reasonable in allocating possession of the only undisputed item, the china, to Ms. Robeaux. Therefore, we cannot find that the trial court abused its discretion in its ruling.

CHILD SUPPORT

The second rendered judgment that Mr. Robeaux complains of is the trial court’s failure to modify child support. He cites three reasons for the reduction or suspension of the child support award: 1) his underemployment, 2) an increase in Ms. Robeaux’s income, and 8) secreting his son, Dillon, by Ms. Robeaux.

An award of child support should not be modified unless the party seeking the modification shows a change of circumstances of one of the parties between the time of rendition of the previous award and the time of the motion for modification. La. R.S. 9:311(A). The party seeking the modification bears the burden of proving that a change in circumstances has occurred since the fixing of the prior award. State Through Dept. of Social Services, Office of Family Support in the Interest of Seals v. Seals, 97-1508, p. 2 (La.App. 4 Cir. 10/29/97), 701 So.2d 746, 748 (citations omitted). If the moving party satisfies his burden, a presumption exists that the support obligation must be modified. The burden then shifts to the other party to disprove the change or otherwise rebut the presumption. The non-moving party may rebut the presumption in favor of reduction by showing that the moving party’s voluntary actions caused the change in circumstances, or that other factors mitigate against the reduction. Seals, supra (citing Polk v. Polk, 626 So.2d 1233 (La.App. 4 Cir.1993)). A trial court has great discretion in deciding whether a modification of child support is warranted, and such decisions will not be upset on appeal absent a clear abuse of that discretion. Rosenbloom v. Rosenbloom, 94-1762, p. 3 (La.App. 4 Cir. 4/26/95), 654 So.2d 877, 879.

Mr. Robeaux claims that the trial court abused its discretion in finding that he was voluntarily unemployed. With regard to the issue of underemployment, we are guided by La. R.S. 9:315(C)(5)(b), which defines “income” and states:

Potential income of a party, if the party is voluntarily unemployed or underemployed. A party shall not be deemed voluntarily unemployed or underemployed if he or she is absolutely unemployable or incapable of being employed, or if the unemployment or underemployment results through no fault or neglect of the party.

Voluntary underemployment [or unemployment] is a question of good faith on the obligor claiming to have a reduced income. See Hansel v. Hansel, 00-1914, p. 6 (La.App. 4 Cir. 11/21/01), 802 So.2d 875, 880 (citation omitted). It is a fact driven consideration; and, the trial court has wide discretion in determining the credibility of witnesses and its factual determinations will not be disturbed on appeal absent a showing of manifest error. Langley v. Langley, 07-754, p. 4 (La.App. 4 Cir. 3/26/08), 982 So.2d 881, 883 (citation omitted); Sequeira v. Sequeira, 04-433, 04-463, p. 11 (La.App. 5 Cir. 11/30/04), 888 So.2d 1097, 1105 (citation omitted).

At the hearing on the motion to modify child support, Mr. Robeaux testified that his active duty with the Army Counter Drug Task Force was limited to twenty years, and he was honorably discharged for this reason. Mr. Robeaux admitted that he was aware of the policy since he was hired with the program twenty years earlier. He stated that he still remained in the National Guard Reserves, and was seeking other employment opportunities, including applying for other active duty positions with the military. He also testified that he had started a lawn care business to supplement his income in the meantime. After the hearing, the trial court found that Mr. Robeaux was voluntarily unemployed as he knew or should have known that his employment was going to terminate; therefore, his argument that he was unable to anticipate and find gainful employment prior to his separation date was disingenuous.

Given the fact that Mr. Ro-beaux’s testimony regarding his discharge and his efforts to find employment went uncontroverted at trial, the trial court was manifestly erroneous in discrediting that testimony. See Katner v. Katner, 09-974, p. 10 (La.App. 4 Cir. 12/23/09), 28 So.3d 566, 574 (citation omitted)(the trier of fact should accept the unrefuted testimony of a witness as true). For this reason, we find that the trial court abused its discretion in refusing to reduce the child support award due to the involuntary change in Mr. Ro-beaux’s circumstances. 112However, the information in the record is insufficient to establish a modified obligation. Consequently, the case must be remanded for further proceedings.

Finally, Mr. Robeaux asserts that the trial court abused its discretion in failing to find that Ms. Robeaux intentionally secreted their son, Dillon, from Mr. Ro-beaux.

Louisiana Revised Statute 9:315.23 provides in pertinent part as follows:

If one joint custodial parent or his agent is intentionally secreting a child with the intent to preclude the other joint custodial parent from knowing the whereabouts of the child sufficiently to allow him to exercise his rights or duties as joint custodial parent, the latter may obtain from the court an order suspending or modifying his obligation under an order of judgment of child support....

The record does not support that Ms. Ro-beaux intentionally secreted the minor child, Dillon. Instead, the record establishes that Dillon refused to participate in visitation due to a strained father-son relationship. Further, Ms. Robeaux continued bringing her daughter to all of the scheduled visitations with Mr. Robeaux. Accordingly, we find that the trial court did not abuse its discretion in failing to modify or suspend the child support for this reason.

DECREE

For the reasons discussed, the community property partition judgment is reversed to reflect that Mr. Robeaux is entitled to reimbursement for his half of the insurance proceeds ($12,167.21), and amended to clarify that Ms. Robeaux is entitled to receive half of the portion of Mr. Ro-beaux’s military retirement earned | isduring the marriage, according to the Sims formula. The judgment is hereby rendered to reduce the equalizing payment due to Ms. Robeaux to $7,487.06.

Additionally, the judgment denying Mr. Robeaux a reduction in child support is reversed, and the case is remanded for further proceedings.

JUDGMENT OF PARTITION REVERSED IN PART; AMENDED AND RENDERED JUDGMENT ON REDUCTION IN CHILD SUPPORT REVERSED IN PART AND REMANDED.

      . The parties agree that the community regime was terminated on April 29, 2005.

      . Child support was not made retroactive.

      . The September 4, 2007, minute entry reflects the dates the parties were to file their descriptive lists: Ms. Robeaux by September 17 and Mr. Robeaux by September 27, 2007. Mr. Robeaux timely filed his descriptive list despite the fact that Ms. Robeaux failed to file hers in accordance with their agreement. In addition, neither party traversed or concurred in the other's descriptive lists as required by La. R.S. 9:2801. Nevertheless, amended descriptive lists were filed, and the parties went to trial on the community property partition.

      . Mr. Robeaux was ordered to execute a promissory note with simple interest fixed at 3.35 percent per annum, within thirty days of the final judgment, or pay the entire obligation within sixty days of the final judgment.

      . The six assignments of error regarding the community property partition are: 1) the trial court committed legal error by not considering all assets listed in the parties’ sworn descriptive lists when determining the assets of the former community property; 2) the trial court committed legal error in determining that Trechel Robeaux is entitled to one-half of Lance Robeaux’s military retirement; 3) the trial court committed legal error by denying Lance Robeaux’s reimbursement claim of $24,334.42 for the remainder of the insurance proceeds from Hurricane Katrina; 4) the trial court committed legal error by failing to consider and/or denying Lance Robeaux's reimbursement claim of $21,660.00 for payment of community debts from 2005-06 while he was in Iraq; 5) the trial court committed legal error by denying Lance Robeaux's reimbursement claim of $4,479.89 for payment of the loan to Regions Bank which encumbered the aluminum boat; and 6) the trial court committed legal error by denying Lance Ro-beaux's reimbursement claim of $12,295.00 for the payment of the parties' community credit card debt amassed during the marriage.

      .The four assignments regarding the denial of a reduction or suspension in child support are: 1) trial court committed legal error in determining that Lance Robeaux was voluntarily unemployed for the purpose of child support; 2) the trial court committed legal error by failing to allow Lance Robeaux to present relevant evidence to refute allegations that he voluntarily left active military duty; 3) the trial court committed legal error by denying Lance Robeaux’s reduction in child support without considering the gross monthly income of the parties; and 4) the trial court abused its discretion in finding that Trechel Robeaux did not secrete the minor child, Dillon Robeaux, from Lance Robeaux.

      . La. C.C. art. 2369 provides:
      A spouse owes an accounting to the other spouse for community property under his control at the termination of the community property regime.
      The obligation to account prescribes in three years from the date of the termination of the community property regime.

      . Although Ms. Robeaux testified at trial that the remaining amount was $24,000.00, it is apparent from the record that she rounded the exact value ($24,334.42) to the nearest thousand to reach this figure.

      . At that time, Mr. Robeaux’s mother and mandatory issued the payments to Ms. Ro-beaux on his behalf.

      . The debt listed on Mr. Robeaux's descriptive list included debt from Home Depot, Regions Bank, Chase Bank, American General, Bank of America, Capital One, and Wells Fargo. However, Ms. Robeaux's descriptive list only recognizes reimbursement due to Mr. Robeaux for payments on the Home Depot credit card, and a MBNA credit card, which was not listed by Mr. Robeaux.

      . At trial, Mr. Robeaux testified that all of the community debts, excluding the boat loan, were consolidated.

      . This court may not set aside a trial court's finding of fact absence manifest error or unless it is clearly wrong; reasonable evaluations of credibility and reasonable inferences of fact will not be disturbed on appeal. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

      . Mr. Robeaux’s descriptive list states that the amount was $4,479.98. Thus, the defendant’s brief appears to contain a clerical error.

      . The disputed items include: master bedroom set, children’s bedroom sets, living room furniture, washer and dryer set, refrigerator, four television sets, fine china set, every day dishes, miscellaneous furniture, patio furniture, home décor, all clothing for children, toys and games for children, and family mementos.

      . Since the casé must be remanded on the support issue, Mr. Robeaux's second argument regarding the trial court’s failure to consider Ms. Robeaux’s increase in income is moot. As such, we pretermit discussion of this assignment of error.

      . The equalizing payment rendered by this Court, $7,487.06, represents the difference between, the equalizing payment ordered by the trial court ($19,654.27), and the reimbursement due to Mr. Robeaux from the insurance proceeds ($12,167.21).