author: DOWNING, J. dissenting.

text:
    Gregory TRICHE and Donna Triche v. Dwight MARTIN, Cherokee Insurance Company, Lincoln General Insurance Company, and State Farm Mutual Automobile Insurance Company.
    No. 2008 CA 1220.
    Court of Appeal of Louisiana, First Circuit.
    May 8, 2009.
    Charles S. Long, Donaldsonville, LA, for Plaintiffs/Appellees, Gregory & Donna Triche.
    W. Paul Andersson, J. Roumain Peters, III, Raymond R. Egan, III, New Orleans, LA, for Defendant/Appellant, Cherokee Insurance Company.
    Allen C. Dobson, Little Rock, AR, Pro hac vice.
    Before CARTER, C.J., WHIPPLE, GUIDRY, PETTIGREW, and DOWNING, JJ.
   DOWNING, J.

| ^Defendant, Cherokee Insurance Company, appeals from an amended judgment of the trial court, granting in part and denying in part its motion for summary judgment and granting the motion for summary judgment filed by plaintiffs, Gregory and Donna Triche. For the following reasons, we reverse in part and affirm in part.

FACTS AND PROCEDURAL HISTORY

On June 24, 2005, Gregory Triche and Dwight Martin were involved in an automobile accident in Little Rock, Arkansas. At the time of the accident, Triche was a passenger in a 1990 Chevolet SUV privately owned and operated by Martin. Triche and Martin, both residents of Louisiana, were independent truck owner/operators and had contracted with Central Hauling Company (“Central Hauling”) of Little Rock, Arkansas, to haul cargo and freight across the country. Triche and Martin had also entered into lease-purchase agreements with Arkansas Equipment Leasing, Inc. of Mabelvale, Arkansas, for the lease-purchase of their trucks.

On the date of the accident, Triche and Martin left their trucks and trailers at the Central Hauling “yard” in Little Rock, Arkansas, and were going to get lunch in Martin’s personal vehicle while their trucks were being loaded. As Martin’s vehicle entered the interstate highway, another vehicle collided with it, causing Martin’s vehicle to flip several times, resulting in severe injuries to Triche. Martin did not have any insurance on his personal vehicle. However, Central Hauling had procured two policies from Cherokee Insurance Company (“Cherokee”) for its drivers, which were in effect at the time of the accident: (1) a 13Commercial Auto Liability Policy (CA050025); and (2) a Commercial NonTrueking Auto Liability Policy or “bobtail policy” (BT050007).

On April 10, 2006, Triche and his wife, Donna, (hereinafter “plaintiffs”) filed the instant suit seeking to recover for injuries and damages sustained as a result of the accident. Thereafter, plaintiffs moved for summary judgment, contending that Triche was covered under the Cherokee policy and that the UM limits of $50,000.00 should be determined to be equal to the liability limits of $1,000,000.00, due to the lack of a knowing and intelligent waiver or selection by Triche of the lower $50,000.00 limits under Louisiana law.

Cherokee countered with a cross-motion for summary judgment, contending that there was no UM coverage under the Cherokee policy available to the plaintiffs in this case. Alternatively, Cherokee contended that should the court find that there was UM coverage under the policy, any recovery would be limited to $50,000.00 as stated in the policy. Cherokee further contended that when considering the issue of UM coverage under Cherokee’s policy, the court should apply Arkansas law.

At the conclusion of a hearing, the trial court granted the motion for summary judgment in favor of plaintiffs and issued written reasons for judgment. | thereafter, a written judgment was signed on October 22, 2007 granting plaintiffs’ motion for summary judgment.

On January 3, 2008, the trial court signed an amended judgment in accordance with its October 22, 2007 judgment wherein it ordered: (1) that plaintiffs were not precluded from recovery against Cherokee’s bobtail policy pursuant to La. R.S. 22:680(i )(c)(ii)(bb), the Louisiana Anti-Stacking statute, as plaintiffs had returned an unconditional tender from State Farm in the amount of $50,000.00 and instead chose to seek recovery under Cherokee’s bobtail policy; (2) that Cherokee’s motion for summary judgment was granted in part, inasmuch as the court found that there was no coverage available under Cherokee’s Commercial Auto Liability Policy, but was denied to the extent that Cherokee sought judgment as a matter of law decreeing that plaintiffs were precluded from recovering under its bobtail policy; and (3) designating the judgment as final and appealable in accordance with La. C.C.P. art. 1915(B)(1).

Cherokee filed the instant appeal from the judgment of the trial court, contending that the trial court erred in: (1) applying Louisiana law to the bobtail policy to change the UM limits from $50,000.00 to $1,000,000.00; (2) finding that Louisiana law applied, rather than Arkansas law, after conducting its conflicts of law analysis; and (3) finding that Triche had not already made a designation to | ^accept UWUIM funds from State Farm, and that he was not precluded under La. R.S. 22:680 and its anti-stacking provisions from making a claim against the Cherokee bobtail policy.

DISCUSSION

Standard of Review

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Sanders v. Ashland Oil, Inc., 96-1751 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1034. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Summary judgment is favored and “is designed to secure the just, speedy, and inexpensive determination of every action.” La. C.C.P. art. 966(A)(2).

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Sanders v. Ashland Oil, Inc., 696 So.2d at 1035. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Walker v. Phi Beta Sigma Fraternity (Rho Chapter), 96-2345 (La.App. 1 Cir. 12/29/97), 706 So.2d 525, 528. Thus, we must determine whether the documents introduced in evidence establish that plaintiffs are entitled to judgment in their favor as a matter of law under the applicable substantive law. See Gray v. American Nat. Property & Casualty Co., 07-1670 (La.2/26/08), 977 So.2d 839, 844.

1 Assignments of Error Numbers One and Two

In these two assignments, Cherokee contends that the trial court erred in finding that Louisiana law applied herein rather than Arkansas law and in applying Louisiana law to erroneously determine that the UM policy limits are $1,000,000.00. We find merit in these assignments of error.

While the trial court conducted a thorough conflict-of-laws analysis in deciding to apply Louisiana law here, it committed legal error in so doing. It failed to properly interpret and apply the provisions of Louisiana’s uninsured/underinsured motorists (UM) law, former La. R.S. 22:680, which has been renumbered as La. R.S. 22:1295. This statute provides in pertinent part:

The following provisions shall govern the issuance of uninsured motorist coverage in this state:
(Z)(a)(i) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle designed for use on public highways and required to be registered in this state or as provided in this Section unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover nonpunitive damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death resulting therefrom; ...
(iii) This Subparagraph and its requirement for uninsured motorist coverage shall apply to any liability insurance covering any accident which occurs in this state and involves a resident of this state.

(Emphasis added.)

|7We first note that “the statute is limited by the introductory language ... which states that the statute ‘shall apply to the issuance of uninsured motorist coverage in this state.’” Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773, 785-86. “The introductory language is clear and unambiguous and does not lead to absurd consequences.” Id., 893 So.2d at 786. Here, the policy under consideration was not issued for coverage in Louisiana. Second, section l(a)(i) of the statute limits its application to policies delivered or issued for delivery in Louisiana. Here, the policy under consideration was not delivered or issued for delivery in Louisiana. Third, section l(a)(iii) plainly states that the statute’s application is limited to accidents occurring “in this state” involving a resident of this state. The accident at issue did not occur in Louisiana.

“When interpreting a statute, all parts of a statute should be given effect, and an interpretation making any part superfluous or meaningless should be avoided.” Id. Accordingly, we conclude from the statute’s language that La. R.S. 22:1295 is not applicable to the policy at issue and that the trial court erred in employing Louisiana’s UM law to find coverage for the Triches.

Finding merit in Cherokee’s first and second assignments of error, we will accordingly reverse the summary judgment that granted the Triches’ motion for summary judgment. We will also reverse the judgment rendered in favor of the Triches that determined that they were not precluded from recovery against Cherokee under Louisiana’s UM law, La. R.S. 22:1295, under policy no. BT05007.

lain so ruling, we observe that conflict-of-laws analysis can be appropriate in circumstances where an accident occurs in Louisiana involving Louisiana residents and out-of-state motorists. See Champagne, 893 So.2d at 786-88. But by the statute’s own terms, it is inapplicable to the matter before us.

Assignment of Error Number Three

In this assignment of error, Cherokee argues that plaintiffs are precluded from recovery against any other UM/UIM policy that plaintiffs may have access to because they had already elected to recover, “and have recovered,” $50,000.00 in UM7 UIM coverage from State Farm. We agree that the Triches were not entitled to entry of summary judgment on this issue.

As discussed above, La. R.S. 22:1295 is inapplicable to the matter before us. Accordingly, we conclude that the trial court erred in applying La. R.S. 22:1295(l)(c)(ii)(bb), Louisiana’s anti-stacking provision, to the dispute over whether the Triches were entitled to return an unconditional tender and pursue a recovery under a different policy. ’ Accordingly, we will reverse the entry of summary judgment in favor of the Triches bn this issue, and we pretermit discussion of the merits of the issue.

DECREE

After our de novo review of the record, and considering the relevant law and jurisprudence, we conclude that the trial court erred in granting summary judgment in favor of the Triches, who were not entitled to summary judgment as a matter of law finding coverage under Cherokee’s bobtail policy. Thus, for the above and foregoing reasons, the January 3, 2008 amended judgment of the trial |9court and the November 22, 2007 judgment are reversed insofar as they grant recovery to the Triches on their motion for summary judgment. In all other respects the amended judgment is affirmed. Costs of this appeal are assessed against Gregory and Donna Triche.

REVERSED IN PART; AFFIRMED IN PART.

GUIDRY, J., concurs.

WHIPPLE, J., dissents and assigns reasons.

WHIPPLE, J.,

dissenting.

hi respectfully disagree with the majority’s opinion that a conflict of laws analysis is unnecessary in this matter. Given the particular facts of this case, the policy at issue, and the significant contacts with Louisiana, I would find the trial court correctly determined that Cherokee’s bobtail policy afforded the Triches coverage herein.

In its thorough written reasons for judgment, the trial court noted that Cherokee had numerous contacts with the State of Louisiana and had purposefully availed itself of the laws of Louisiana, having been “registered” to write vehicle insurance in Louisiana since 1972. Thus, the trial court found that “application of Louisiana law to an insurance company that is required by statute to adhere to Louisiana law to write vehicle liability insurance to Louisiana should be no surprise, nor unfair.” After reviewing the evidence, the trial court concluded that Triche had significant contacts with Louisiana, in that he was a resident of Louisiana and he was treated in Louisiana for injuries sustained in the accident. The trial court further noted that Central Hauling likewise had significant contacts with Louisiana, in that: (1) Central Hauling is an Arkansas corporation engaged in business in the forty-eight contiguous United States; (2) Central Hauling specifically purchased bobtail insurance on behalf of Triche to cover him when he was in Louisiana at his home and not hauling a load for Central Hauling to protect Central Hauling; and (3) Central Hauling has numerous business contacts with |2Louisiana. Specifically, these contacts included Central Hauling’s maintenance of a drop yard in Port Allen, Louisiana, and its transportation of goods to and from Exxon Mobile and Castro Oil in Baton Rouge, Imperial Sugar in Gramercy, the Tobasco Plant in New Iberia and Associated Grocers in Baton Rouge and Wagner, Louisiana. For these reasons, the trial court found sufficient contacts with Louisiana existed to warrant application of Louisiana law.

The trial court noted that the stated coverage territory is defined in the language of the policy as “the United States of America.” The trial court determined that, in this case, the available coverage is $1,000,000.00 unless validly rejected, noting that to effect the valid rejection of UM coverage under LSA-R.S. 22:1406(d)(l)(a), the insured or his authorized agent must expressly set forth, in a single document, that UM coverage is rejected in the State of Louisiana as of a specific date and the particular policy issued or to be issued by the insurer. The trial court further reasoned that any writing, regardless of the intention of the insured, of a less precise nature is insufficient to effect a valid rejection. The trial court thus concluded that in the absence of any such writing or rejection, coverage afforded in this case was $1,000,000.00 because there was no valid waiver or rejection of the UM coverage.

Cherokee contends in its first two assignments of error that the trial court erred in finding that Louisiana law applied herein, rather than Arkansas law and in applying Louisiana law to erroneously determine that the UM policy limits are $1,000,000.00.

When conducting a choice-of-law analysis, we look to LSA-C.C. arts. 3515 and 3537. Dunlap v. Hartford, Insurance Company of the Midwest, 2004-0725 (La. App. 1st Cir.3/24/05), 907 So.2d 122, 124. The objective of the choice-of-law process is to identify the state whose policies would be most seriously | .¡impaired if its laws were not applied to the particular issue involved in the law suit. See LSA-C.C. art. 3515 and 3537.

According to Louisiana Civil Code article 3515:

That state is determined by evaluating the strength and pertinence of the relevant policies of all involved states in the light of: (1) the relationship of each state to the parties and the dispute; and (2) the policies and needs of the interstate and international systems, including the policies of upholding the justified expectations of parties and of minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state.

Moreover, LSA-C.C. art. 3537 sets forth:

That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in the light of: (1) the pertinent contacts of each state to the parties and the transaction, including the place of negotiation, formation, and performance of the contract, the location of the object of the contract, and the place of domicile, habitual residence, or business of the parties; (2) the nature, type, and purpose of the contract; and (3) the policies referred to in Article 3515, as well as the policies of facilitating the orderly planning of transactions, of promoting multi-state commercial intercourse, and of protecting one party from undue imposition by the other.

In accordance with these articles, the nature, type and purpose of the contract, as well as the relationship of each state to the party and to the dispute, must be considered to determine which state’s policies would be most seriously impaired if its laws were not applied. Dunlap v. Hartford Insurance Company of the Midwest, 907 So.2d at 124. In support of and in opposition to their respective motions for summary judgment, extensive documentary evidence was introduced, which reflects the following.

LThe Cherokee bobtail policy number BT050007 was negotiated and purchased in Arkansas by Central Hauling through its agent, AON Risk Services, Inc. Cherokee is a domestic insurance company domiciled in Warren, Michigan, but licensed to sell insurance in the State of Arkansas. Cherokee Insurance Company, however, is also registered and licensed with the Louisiana Department of Insurance to provide and sell automobile liability insurance in Louisiana, and has been doing so since 1972. Further, Triche is specifically identified as an owner/operator covered under the bobtail policy, in a bobtail schedule attached to Central Hauling’s insurance policy. Triche paid Cherokee’s premium, for the bobtail coverage afforded to him through Central Hauling, on a weekly basis. Importantly, the very purpose of this policy is to protect owner/operators, like Triche, when they are not in the process of hauling goods or cargo for Central Hauling. Likewise, another purpose of the bobtail policy is to protect Central Hauling from liability when its owner/operators are at home or on personal errands in their trucks. The bobtail policy specifically provides coverage to the owner/operators when their units are engaged in personal rather than business use, i.e., while en route returning home or while on a personal errand. The bobtail policy further provides that UM coverage is afforded in the amount of $50,000.00 “or statutory minimum.” However, the bobtail policy does not contain a rejection or selection-of-lowerJimits5 form as required by Louisiana law for UM coverage, although the coverage territory of the policy, as stated therein, is “The United States of America.” While the policy contains endorsements and modifications of UM coverage for covered automobiles licensed or principally “garaged in” or for “ ‘garage operations’ conducted in” Arkansas, Triche’s covered automobile was garaged in Louisiana. Thus, in my view, these limiting endorsements are inapplicable to Triche.

As an insured under the policy, Triche’s relationship to the state, the occurrence, the contract and the dispute are also relevant matters which must be considered in a choice-of-law analysis. See LSA-C.C. arts. 3515 and 3537; Dunlap v. Hartford Insurance Company of the Midwest, 907 So.2d at 124. Triche has been a resident of Louisiana since 2001, residing in Don-aldsonville, Louisiana, with his wife, Donna. On January 5, 2005, he entered in to an owner/operator agreement with Central Hauling to transport freight nationwide in his freightliner truck. Pursuant to his agreement with Central Hauling, Triche had previously made numerous pick-ups from and deliveries to Louisiana businesses, including the Exxon Mobile refinery in Baton Rouge, Castro Oil in Port Allen, Imperial Sugar in Gramercy, the Tobasco Plant in New Iberia, Associated Groceries in Baton Rouge, and businesses in Wagner, Louisiana. Triche had also regularly picked up trailers from Central Hauling’s “drop yard” in Port Allen, Louisiana. After Triche was discharged from the hospital in Arkansas, he returned to his home in Louisiana, where he received follow-up medical care and treatment, skilled nursing services and rehabilitation services. At all pertinent times, Triche’s freightliner, used for hauling goods for Central Hauling, was garaged at his home in Donaldsonville, Louisiana.

At the time of the accident, Triche was not in the course and scope of any business for Central Hauling. Instead, he had left the Central Hauling yard in | ^Arkansas to get lunch with Martin, another Louisiana resident, in Martin’s personal vehicle, which was registered, licensed, and garaged in Louisiana. Martin’s vehicle was uninsured.

Central Hauling is a registered Arkansas corporation, using dry and refrigerated motor carriers to conduct its business in forty-eight states. Although Central Hauling owned approximately twenty trucks, it primarily used owner/operators to haul freight, having approximately four hundred thirty owner/operator trucks in its fleet. Central Hauling has a “drop yard” in Port Allen, Louisiana, where drivers park their trailers, pick up loads, or switch out loads with other drivers. Central Hauling also conducts significant business in Louisiana and pays apportionment schedules for gasoline taxes so that its trucks may travel freely through Louisiana.

Considering the evidence submitted herein, Central Hauling, Triche, and Cherokee could readily anticipate that another state’s laws could apply, considering the policy coverage territory was the entire United States. Further, the evidence establishes that Central Hauling knew, or should have known, that its owner/operators, who were residents of other states, were insured under the policy, and that their vehicles were garaged in other states. Moreover, Triche was specifically listed as an insured in a bobtail schedule attached to the policy, and had substantial contacts and presence in Louisiana. In addition to Triche’s substantial contacts with the State of Louisiana, we agree that Central Hauling and Cherokee had a substantial commercial presence in the State of Louisiana, sufficient to conclude that although the accident herein occurred in Arkansas, given the circumstances of this case, Louisiana’s interests in applying its UM laws in this case outweigh the interests of Arkansas herein. Thus, I find no error by the district court in its choice-of-law analysis or in its application of Louisiana law.

17Further, under Louisiana’s UM statute, LSA-R.S. 22:680, automobile liability insurance delivered or issued for delivery in Louisiana and arising out of the ownership, maintenance, or use of a motor vehicle registered in Louisiana and designed for use on public highways must provide UM motorist coverage equal to the liability coverage provided to the insured for bodily injury, unless UM coverage has been validly rejected or lower UM limits have been selected. Halphen v. Borja, 2006-1465 (La.App. 1st Cir.5/4/07), 961 So.2d 1201, 1205, writ denied, 2007-1198 (La.9/21/07), 964 So.2d 388. The object of UM coverage is to provide full recovery for automobile accident victims who suffer damages caused by a tortfeasor who is not covered by adequate liability insurance. Henson v. Safeco Insurance Companies, 585 So.2d 534, 537 (La.1991). Exclusionary provisions in automobile liability insurance policies are to be strictly construed in favor of coverage. Collins v. Farris, 2003-1991 (La.App. 1st Cir.11/3/04), 897 So.2d 634, 638.

Although Louisiana’s public policy strongly favors UM coverage and a liberal construction of the UM statute, it is well settled that a person who does not qualify as an insured for liability coverage under a policy of insurance is not entitled to UM coverage under the policy. Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191, 196. UM coverage attaches to the person of the insured, not the vehicle, and any person who enjoys the status of insured enjoys such coverage protection simply by reason of having sustained injury by an uninsured or underinsured motorist. Howell v. Balboa Insurance Company, 564 So.2d 298, 301-302 (La.1990).

Considering the evidence in the record submitted by both plaintiffs and Cherokee, and considering the ■ applicable jurisprudence, I find the trial court |scorrectly determined that Cherokee’s policy afforded UM coverage for its insured, Triche, in the amount of $1,000,000.00 absent a valid UM waiver herein.

With regard to Cherokee’s argument in its third assignment of error, i.e., that plaintiffs are precluded from recovery against any other UM/UIM policy that plaintiffs may have access to because they have already elected to recover, “and have recovered,” $50,000.00 in UM/UIM coverage from State Farm, I likewise find no merit.

At the hearing on the motions for summary judgment, counsel for State Farm acknowledged that State Farm had tendered $50,000.00 to plaintiffs, which was the extent of their UM coverage, but that counsel for plaintiffs subsequently returned the amount tendered, as plaintiffs opted to recover under the Cherokee policy. Further, when counsel for Cherokee asked the trial court if plaintiffs’ election to recover UM funds from State Farm would affect their recovery against Cherokee, the following colloquy occurred:

THE COURT:
He doesn’t have to take State Farm’s money.
[COUNSEL FOR PLAINTIFFS]:
I gave it back.
[COUNSEL FOR CHEROKEE]:
Okay.
THE COURT:
Have you got the State Farm money?
[COUNSEL FOR PLAINTIFFS]:
No. No, I don’t.
THE COURT:
I didn’t think you did.
[COUNSEL FOR STATE FARM]:
| flState Farm got it back.
THE COURT:
Exactly. That’s what I assumed.

If multiple policies apply to a claim for UM benefits, the insured is entitled to select a policy, so long as the insured is not occupying a vehicle owned by the insured, but not described in the policy. See Seither v. Winnebago Industries, Inc., 2000-2196 (La.App. 1st Cir.1/23/02), 808 So.2d 792, 796. Plaintiffs herein returned the tendered funds to State Farm. Thus, they clearly did not recover against State Farm’s UM policy. Rather, plaintiffs elected to seek recovery under Cherokee’s UM policy. Cherokee has asserted no authority which binds a plaintiff to a selection of certain UM coverage when, as here, the plaintiff has returned any tendered funds and elected to recover under another available UM policy. Thus, in my view, this assignment of error likewise lacks merit.

For these reasons, I respectfully dissent and would affirm the judgment of the trial court.

      . The “bobtail’' policy herein provided insurance coverage to owner/operators when they used their units for purposes other than business or hauling goods for Central Hauling, i.e., while on their way to and from home, or when traveling to a store. Although Central Hauling procured the bobtail coverage through its insurance broker, AON Risk Services, Inc., the weekly and monthly rate for the cost of the bobtail coverage was directly charged by Central Hauling to the individual owner/operators and was deducted from their pay each week.

      . Plaintiffs' claims against the other defendants named in this matter, Lincoln General Insurance Company, CalArk International, Inc.’s insurer, and Slate Farm Mutual Automobile Insurance Company, Donna Triche’s UM insurer, were dismissed. Although State Farm unconditionally tendered $50,000.00 pursuant to Donna Triche's UM coverage under her automobile insurance policy, plaintiffs returned the tender and elected to pursue their claims against Triche’s UM coverage with Cherokee.

      .After the October 22, 2007 hearing, Cherokee filed an application for supervisory writs with this Court seeking review of the trial court's grant of plaintiffs’ motion for summary judgment. On November 6, 2007, this Court denied Cherokee’s writ application, declining to exercise its supervisory jurisdiction under the criteria set forth in Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981). See Triche v. Martin, 2007 CW 2179 (unpublished writ action).

      . We conclude that Cherokee also appeals here the October 22, 2007 judgment. The October 22, 2007 judgment was a partial final judgment pursuant to La. C.C. P. art. 1915 B that was not determined to be final and was' not certified as final. La. C.C.P. art. 1915 B(2) provides that in the absence of such determination and designation, any order or decision of the trial court "shall not constitute a final judgment for purposes of an immediate appeal.” Pertinently here, the article further provides that, "[a]ny such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.” The January 3, 2008 judgment states that it amends the October 22, 2007 judgment to make additional rulings on the same motions decided on October 22, 2007. Therefore, we consider and review the October 22, 2007 judgment as integrated into the January 3, 2008 judgment.

      . By Acts 2008, No. 415, § 1, effective January 1, 2009, Title 22 of the Louisiana Revised Statutes was reenacted to redesignate the current provisions of Title 22 in to a new format and number scheme without changing the substance of the provisions. Pursuant to this reenactment, La. R.S. 22:680 was renumbered as La. R.S. 22:1295. For ease of reference, we will refer to the statute’s current number in this opinion.

      . We note that Cherokee does not specifically appeal the denial of its motion for summary judgment on the issue of coverage under policy BT05007. And, a court of appeal does not have appellate jurisdiction to consider the denial of a motion for summary judgment. Hood v. Cotter, 08-0215, 08-0215 (La.12/2/08), 5 So.3d 819, 823: "An appeal does not lie from the court’s refusal to render any judgment on the pleading or summary judgment.” La. C.C.P. art. 968. Even though the same issue lies at the heart of the cross-motions motions for summary judgment, we decline to exercise our supervisory jurisdiction to review Cherokee’s motion. See Id.

      . This subsection provided as follows:
      (bb) Should that primary uninsured motorist coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from other uninsured motorist coverage available to him. In no instance shall more than one coverage from more than one uninsured motorist policy be available as excess over and above the primary coverage available to the injured occupant.

      . In support of their motion for summary judgment, plaintiffs introduced numerous documents, including, inter alia: the deposition testimony of Ralph Durante, president of Central Hauling; the Cherokee policy and declaration page; Central Hauling’s Operator Agreement; the deposition testimony of Michael Cleveland, comptroller for CalArk and Central Hauling; the affidavit of Triche; the affidavit of Duane Hardy, a Farm Bureau representative; AON Risk Service Inc.'s monthly reporting form for Central Hauling's bobtail policy coverage premium per unit for policy period 1/1/05-1/1/06; Certificate of Authority for Cherokee Insurance Company; Central Hauling’s Driver's Manual; Texas liability insurance card; Texas apportioned license cab card, and history of settlements with domestic owners; plaintiffs’ petition for damages and supplemental petition for damages; and a bill of sale for Triche’s truck from Arkansas Equipment Leasing, Inc. In support of Cherokee’s motion for summary judgment, it also introduced numerous documents, including: the affidavit of Mark Dadabbo, President of Cherokee Insurance Company; the Cherokee Insurance declaration page and policy; the accident report from the Arkansas State Police; Central Hauling’s Operator Agreement; Certificates of Good Standing from the Arkansas Secretary of State for Central Transport, Inc., Central Hauling, Inc., Arkansas Equipment Leasing, Inc., Cherokee Insurance Company, and AON Risk Services, Inc.; certification of Cherokee Insurance Company’s registration as a Michigan company; the equipment lease agreement between Triche and Arkansas Equipment Leasing, Inc.; AON’s monthly reporting form for Central Hauling’s bobtail policy coverage premium per unit for policy period 1/1/05-1/1/06; Triche’s Commercial Driver's License and 1099 for 2005-2006; a checklist for qualification of new drivers and applica-lion; Central Harding's history of settlements with domestic owners; the affidavit of Chip Magee, the State Farm Claims Representa-live; and an insurance quote from AON Risk Services to Central Hauling for coverage by Cherokee Insurance Company.

      . By Acts 2008, No. 415, § 1, effective January 1, 2009, Title 22 of the Louisiana Revised Statutes was reenacted to redesignate the current provisions of Title 22 in to a new format and number scheme without changing the substance of the provisions. Pursuant to this reenactment, LSA-R.S. 22:680 was renumbered as LSA-R.S. 22:1295.


source: Caselaw Access Project

author: CARTER, C.J.

license: Public Domain

text:
    GAYLORD CONTAINER—TEMPLE INLAND & Liberty Mutual Insurance v. Rob DUNAWAY.
    No. 2008 CA 2264.
    Court of Appeal of Louisiana, First Circuit.
    May 8, 2009.
    Sam J. Collett, Jr., Bogalusa, LA, and Catherine Leary, Westwego, LA, for Appellant, Rob Dunaway.
    Craig J. Robichaux, Ryan G. Davis, Mandeville, LA, for Appellee, TIN, Inc.
    Paul Michael Elvir, Jr., Metairie, LA, for Appellee, Liberty Mutual Insurance Company.
    Before CARTER, C.J., WHIPPLE and DOWNING, JJ.
   CARTER, C.J.

LThis is a workers’ compensation suit for declaratory judgment filed by the employer, Temple Inland Corp. (TIN), regarding its obligation to pay medical compensation for its employee, Rob Dunaway.

In 1985, Mr. Dunaway suffered a mild heart attack involving his left anterior descending artery. According to the record, the attack was considered to be employment related and TIN paid ongoing medical benefits related thereto. In 1988, Mr. Dunaway experienced another cardiac “episode” involving his right coronary artery. Although the 1988 episode was not considered a “heart attack,” it was considered to be a cardiac event for which TIN paid related medical benefits. In 2002, a cardiac stress test showed a significant change to all three heart vessels, which resulted in catheterization and bypass surgery.

TIN sought declaratory judgment declaring that the 2002 episode and bypass surgery was a new, superseding event that relieved TIN of its obligation to pay benefits for Mr. Dunaway. The trial court granted TIN’s motion for summary judgment, making such a declaration and relieving TIN of its obligation to pay benefits for Mr. Dunaway. Mr. Dunaway now appeals.

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate, i.e., whether there is any genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. Samaha v. Rau, 07-1726 (La.2/26/08), 977 So.2d 880, 882-883. In this case, we find that the medical records raise genuine issues of material fact that preclude summary judgment.

Dr. Dugan, Mr. Dunaway’s treating physician, testified that Mr. Dunaway’s cardiac episodes are progressions of the same coronary artery disease that caused the 1985 heart attack. He also stated that it is difficult to determine the contribution his work environment played in his cardiac condition. While Dr. Delafontaine testified that Mr. Dunaway experienced a new, superseding cardiac event in 2002, he did not have the benefit of examining Mr. Dunaway and admittedly did not consider Mr. Dunaway’s work stress and conditions in his analysis.

Considering the entire record, including the conflicting medical opinions, we find that genuine issues of fact exist with regard to TIN’s obligation to provide medical compensation for Mr. Dunaway. Summary judgment was inappropriate, and the OWC’s judgment is hereby reversed in accordance with URCA Rule 2-16.1.B. Costs of this appeal are assessed to Temple Inland Corp.

REVERSED.

      . Also involved in the suit is Liberty Mutual Insurance Company, which was TIN’s workers’ compensation carrier at the time of the 1988 episode. After TIN filed its motion for summary judgment, Liberty Mutual filed a memorandum with incorporated motion adopting and expanding TIN's motion for summary judgment. A motion for summary judgment is a contradictory motion that must be served by either registered or certified mail or by the sheriff. LSA-C.C.P. art. 1313 C; LSA-R.S. 23:1310.3 C; Hill v. Lopez, 05-0182 (La.App. 1 Cir. 2/22/06), 929 So.2d 80, 83. Liberty Mutual’s memorandum does not meet the procedural requirements for a motion for summary judgment; therefore, no motion for summary judgment by Liberty Mutual was properly before the OWC at the time it rendered the judgment at issue in this appeal.


author: McDonald, j.

text:
    William TAYLOR v. HANSON NORTH AMERICA.
    No. 2008 CA 1944.
    Court of Appeal of Louisiana, First Circuit.
    May 8, 2009.

      Thomas J. Hogan, Jr., Hammond, Louisiana, for Plaintiff/ Appellant, William Taylor.
    Frank R. Whiteley, Metairie, Louisiana, for Defendant/ Appellee, Hanson North America.
    Before CARTER, PETTIGREW, McDonald, jj.
   McDonald, j.

|aIn this workers’ compensation case, Mr. William Taylor suffered a job-related injury on May 19, 1995, while employed by Crown Zellerbach. Hanson North America is the successor in interest to Crown Zellerbach. Hanson North America paid Mr. Taylor’s weekly benefits and medical expenses for a number of years. Hanson North America routinely mailed a weekly benefit check to Mr. Taylor. However, in July and August 2007, three weekly benefit checks were returned for insufficient funds. Hanson North America continued to make weekly benefit payments afterward, but refused to honor the three returned checks.

On October 1, 2007, Mr. Taylor filed a disputed claim for compensation seeking payment of the three returned checks, bank processing fees, penalties, and attorney fees. Hanson North America filed an answer asserting that it had provided funds that brought Mr. Taylor up to date on his benefits.

Mr. Taylor filed a motion for summary judgment asserting that he was clearly due the amount of the returned checks, bank processing fees, penalties, interest, and attorney fees. Hanson North America filed a motion for summary judgment asserting that 520 weeks of indemnity benefits had been paid to Mr. Taylor, he was not permanently and totally disabled nor was he temporarily totally disabled, and thus the checks he received in July and August 2007 were compensation for benefits not owed to him. The workers’ compensation judge granted summary judgment in favor of Hanson North America and against Mr. Taylor, finding that Mr. Taylor had received 520 weeks of indemnity benefits effective January 10, 2007, and further, that Mr. Taylor failed to meet his burden of proof by clear and convincing evidence that he was entitled to permanent and total disability benefits, supplemental earnings benefits, or temporary total disability benefits. Mr. Taylor is appealing that judgment.

| ¡¡After a review of the record, we find that there are genuine issues of material fact in this case that require a hearing. Thus, we reverse the summary judgment in favor of Hanson North America, and we remand the case for further proceedings. Costs are assessed against Hanson North America. This memorandum opinion is rendered in compliance with the Uniform Rules — Courts of Appeal, Rule 2-16.1.B.

REVERSED AND REMANDED.


author:
ROLAND L. BELSOME, Judge.
      McKAY, J., LOVE, J.,

text:
    The COUNCIL OF the CITY OF NEW ORLEANS, Jackie Clarkson, Arnie Fielkow, Cynthia Hedge-Morrell, Cynthia Willard-Lewis, Stacy Head, Shelly Midura and James Carter v. Tracie WASHINGTON, Tionne Simon and the Louisiana Justice Institute.
    No. 2009-C-0389.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 12, 2009.

      William P. Quigley, Davida Finger, Loyola University — School of Law, Ronald L. Wilson, Clarence Roby, Jr., New Orleans, LA, for Tracie L. Washington and the Louisiana Justice Institute.
    Edward R. Washington III, Deputy City Attorney, Evelyn F. Pugh, Chief Deputy City Attorney, Franz L. Zibilich, Associate City Attorney, Penya Moses-Fields, City Attorney, New Orleans, LA, for the City of New Orleans.
    Steven J. Lane, Leonard A. Davis, Soren E. Gisleson, Herman Herman Katz & Cotlar, L.L.P., New Orleans, LA, for the New Orleans City Council.
    (Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   ROLAND L. BELSOME, Judge.

h Relators’ writ is granted. The trial court’s judgment is vacated and the injunction is hereby dissolved. The Relators’ Motion for Leave to File Reply to Plaintiffs’ Response to Defendants’ Application for Supervisory Writ is dismissed as moot.

In Relators’ sole assignment of error, it is argued that the trial court erred in granting the preliminary injunction. This injunction and related arguments surround a December 3, 2008 public records request and the unorthodox production procedures followed. Ordinarily, a public records request to the City of New Orleans is properly responded to via its Legal Department, the City Attorney’s office. In this factual scenario, help was solicited by Relator Washington from Veronica White, the Director of Sanitation for the City of New Orleans. Relator Washington’s December 3, 2008 written public records request sought electronic mail records from a number of New Orleans City Council members dating from 2006 to the present. These New Orleans City Council emails |2were stored in the City of New Orleans’ server, an electronic filing cabinet. Apparently, fearing the imminent disposal of the emails, Relator Washington enlisted the assistance of Ms. White, who facilitated pick-up and production at some point in December 2008. Independent counsel for the New Orleans City Council points out that these documents were not sanitized for privileged materials prior to production. The City Council further argues, correctly, that attorney ethical mandates pursuant to the Louisiana Rules of Professional Conduct required Relator Washington to bundle up the potentially privileged materials and return them, and not threaten to put them curbside for public consumption, as acknowledged by all parties. The trial court adopted the City Council’s position and found that Relator Washington must produce papers on all persons to whom she has displayed her wares over the preceding ninety-plus days. Essentially, the trial court recalled all privileged and non-privileged documents and ordered their production.

The records released were in unredacted form, and Relator Washington, by her own admission, enjoyed unrestricted access to those records for approximately ninety days. Relator Washington maintains that she discussed these records with numerous individuals and also discussed the records publicly. While the records received by Relators may contain privileged information that by definition is not | ^public record, the fact remains that the records, privileged or not, have already been provided to Relators.

We note at the outset that we do not address the legality of the procurement of the records at issue, but merely acknowledge that such records have been produced and viewed in the public arena for approximately three months prior to the issuance of this injunction. The potential civil malfeasance and/or criminal behavior of any and/or all actors associated with the procurement of these documents is not before us. The sole issue is whether or not the trial court’s judgment violates Re-lators’ First Amendment rights.

Essentially, at issue in this writ is whether the trial court, in deferring, delaying, and/or denying publication of previously produced public records violated Re-lators’ First Amendment rights afforded by the U.S. Constitution. Notably, no court in this state has been called upon to balance the Louisiana Public Records Law and the Louisiana Rules of Professional Conduct against First Amendment and constitutional interests.

Relators argue that First Amendment rights are violated by the trial court’s judgment, which constitutes an impermissible prior restraint on freedom of speech, relying in part on New York Times Co. v. United States. In New York Times Co. v. United States, 403 U.S. 713, 91 5.Ct. 2140, 29 L.Ed.2d 822 (1971), the U.S. Supreme Court held that government records involving matters of national security could be published, despite the fact that the records were obtained illegally, because such a prohibition would infringe on the publication’s First Amendment Rights. The New York Times Court noted that “the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.” New York Times, 403 U.S. at 717, 91 S.Ct. at 2143. We find that, although Relator Washington is not a member of the press, the same reasoning applies, as she seeks to publish records obtained via her public records request. In New York Times, the government argued that dissemination of the government documents would greatly compromise national security. We find that the consequences of the release of information in the instant case would not be so insidious.

| ¡^Furthermore, if inadvertently disclosed privileged documents, which are by definition not public records, are subsequently disseminated by Relator Washington, ethical and procedural violations will likely be asserted. With regard to the interests of the Louisiana Public Records Law, Code of Civil Procedure, and Rules of Professional Conduct, as compared to First Amendment interests, however, we find that First Amendment concerns greatly outweigh the former. Additionally, as previously noted, whether every document in the records disseminated to Relator Washington constitutes a public record or not, the information has already been released in its entirety. The trial court’s attempt to withhold information received by Washington, legally or illegally, violates the very foundation of the First Amendment.

The U.S. Supreme Court has stated that “[a]ny prior restraint on expression comes to this Court with a ‘heavy presumption’ against its constitutional validity.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 558, 96 S.Ct. 2791, 2802, 49 L.Ed.2d 683 (1976)(quoting Carroll v. Princess Anne, 393 U.S. 175, 181, 89 S.Ct. 347, 351, 21 L.Ed.2d 325 (1968); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963)). With regard to the U.S. Supreme Court cases examining prior restraint, the Court determined that “[t]he thread running through | fiall these cases is that prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” Nebraska Press Ass’n, 427 U.S. at 559, 96 S.Ct. at 2802.

The City Council argues, however, that no First Amendment rights have been violated because the preliminary injunction is temporary; thus, Relators are not indefinitely prohibited from publishing the information, but are only postponed from doing so while the trial court, not the City Council, reviews the emails prior to dissemination for privileged or protected information. Moreover, the City Council submits that Relators will have the opportunity in the future to object to any information the trial court deems privileged. The U.S. Supreme Court observed in Nebraska, supra:

[T]he order at issue like the order requested in New York Times does not prohibit but only postpones publication. Some news can be delayed and most commentary can even more readily be delayed without serious injury, and there often is a self-imposed delay when responsible editors call for verification of information. But such delays are normally slight and they are self-imposed. Delays imposed by governmental authority are a different matter.

Nebraska Press Ass’n, 427 U.S. at 559, 96 S.Ct. at 2802. We find this reasoning analogous to the issue in the instant writ.

As previously noted, we recognize and do not dispute that the Louisiana Public Records Law contains numerous exceptions, and that the records previously released to Relators may indeed contain records that are exempted. Additionally, we are not questioning the constitutionality of the Louisiana Public Records Act. The question is not the constitutionality of the statute, but whether or not, in this l7instance, the court below addressed the constitutional rights afforded to Relators. The Louisiana Public Records Act speaks to what constitutes a public record and the manner in which public records are available. In this case, however, the records— public records by definition or not — have already been released pursuant to a La. R.S. 44:1 written public records request. Similarly, La.Code Civ. Proc. art. 1424(D) contemplates the return of privileged information if such disclosure is made in connection with litigation; such was not the case here, as the records received by Relators were released in response to her public records request; the litigation ensued as a result of the records that had previously been released pursuant to the public records request.

While we recognize that First Amendment rights are not unqualified, we cannot say that the City Council has overcome the heavy presumption against constitutional validity. Accordingly, we find that the trial court abused its discretion in granting the preliminary injunction under these particular facts and circumstances. While the constitutional issues were not specifically addressed below, we find that the practical nature of the First Amendment concerns necessitates review. See La.Code Civ. Proc. art. 2164 (“The appellate court shall |srender any judgment which is just, legal, and proper upon the record on appeal.”) Finally, to paraphrase Justice Brennan, our opinion in this matter should not be taken to indicate the propriety, in the future, of issuing temporary stays and restraining orders to block the publication of material sought to be suppressed. See New York Times, 403 U.S. at 724-725, 91 S.Ct. at 2146^7 (Brennan, J., concurring).

WRIT GRANTED; JUDGMENT VACATED.

LOVE, J., Concurs and Assigns Reasons.

McKAY, J., Dissents with Reasons.

McKAY, J.,

Dissents with Reasons.

hi respectfully dissent from the majority’s decision to grant this writ. I would deny the writ and affirm the trial court’s granting of the preliminary injunction.

The primary purpose of injunctive relief is to prevent the occurrence of future acts that may result in irreparable injury, loss or damage to the applicant. La. C.C.P. art. 3601. During the pendency of an action for an injunction, the court may issue a temporary restraining order, a preliminary injunction or both. Arco Oil & Gas Co. v. DeShazer, 98-1487 (La.1/20/99), 728 So.2d 841. A preliminary injunction may be granted pending trial on the merits of a permanent injunction in order to preserve the preexisting status of the parties. Metro Riverboat Associates, Inc. v. Bally’s Louisiana, Inc., 97-1672 (La.App. 4 Cir. 1/14/98), 706 So.2d 553. The purpose of a preliminary is to preserve status quo until trial on the merits; on the other hand, a permanent injunction can be issued only after full trial on merits in which burden of proof is by preponderance of evidence. Louisiana Gaming Corp. v. Jerry’s Package Store, Inc., 629 So.2d 479 (La.App. 3 Cir.1993). See also Broadmoor, L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall, 2004-0211 (La.3/18/04), 867 So.2d 651, 655. The trial judge in a preliminary injunction |ahas great discretion to grant or deny that relief. An appellate court will disturb the trial court judgment only upon a showing that the trial court abused its discretion. See Desire Narcotics Rehabilitation Center, Inc. v. State, Department of Health and Hospitals, 2007-0390 (La.App. 4 Cir. 10/17/07), 970 So.2d 17, 20. In the instant case, there is no indication that the trial court abused its discretion. The injunction issued by Judge Medley restores the City’s rights, ensures that records exempt from disclosure under the Louisiana Public Records Act (LAPRA) are appropriately protected, and provides an orderly process for dissemination to the relators the records to which they are entitled. The injunction recognizes the public’s right of access as well as the necessary procedures to ensure that access. The injunction preserves the preexisting status of all parties by ensuring that non-public records or records otherwise exempt from disclosure by law be identified and appropriately withheld. Any error asserted by relators is harmless because full compliance with the preliminary injunction will simply return the parties to their preexisting status. This is not a permanent resolution of the issue between the parties but is merely a procedural device which gives the trial court time to perform its proper function and examine the materials and make a determination as to what are public records that should be released and what are not. This function is "within the trial court’s discretion and we should not interfere with the trial court’s judgment absent an abuse of that discretion.

Although the relators argue that the preliminary injunction violates their rights under the United States Constitution, specifically the First Amendment rights to free speech, publication, and association and the Fifth Amendment right to due process, the relators did not raise these constitutional issues below. The hearing transcript is devoid of any arguments on constitutional issues. As such, this Court is precluded from considering these issues on supervisory review. See |3 Williams v. State, Dept. of Health and Hospitals, 95-0713 (La.1/26/96), 671 So.2d 899.

LOVE, J.,

Concurs and Assigns Reasons.

hi concur in the majority result. I write separately to address Respondents’ failure to establish an irreparable harm sufficient to support the entry of a preliminary injunction and the grant of injunctive relief to address past acts.

To prevail on a motion for preliminary injunction, the movant is required to establish by prima facie evidence that: (1) the injury, loss, or damage it will suffer if the injunction is not issued may be irreparable; (2) it is entitled to the relief sought; and (3) it will likely prevail on the merits of the case. Hall v. Fertility Institute of New Orleans, 94-1135, p. 4 (La.App. 4 Cir. 12/15/94), 647 So.2d 1348, 1351. The jurisprudence interpreting La.Code Civ. Proc. art. 3601 establishes that, while the trial court has broad discretion in deciding whether to grant injunctive relief, injunction is an extraordinary remedy and should only issue where the party seeking it is threatened with irreparable loss without adequate remedy at law. Jim Walter Homes, Inc. v. Jessen, 98-1685 (La.App. 3 Cir. 3/31/99), 732 So.2d 699; Oestreicher v. Hackett, 94-2573 (La.App. 4 Cir. 5/16/95), 660 So.2d 29.

In A to Z Paper Company, Inc v. Carlo Ditto, Inc., 98-1417 (La.App. 4th Cir.9/9/98), 720 So.2d 703, this Court affirmed the denial of a preliminary | ¡.injunction sought by businesses to enjoin the proposed construction of a cement facility. We found that “since the facility was not operational at the time the affidavits were secured, there could have been no direct evidence of damage caused by the emissions since the nature and amount of emissions, if any, could not then be determined.” Id. We stated “plaintiffs seek to forestall construction pursuant to a building permit where there is and, as the trial court doubtless recognized, can be no showing of non-speculative damage.” Id. This Court affirmed the trial court’s finding that affidavits submitted in support of preliminary injunctive relief were insufficient to prove irreparable harm and remanded for trial on the merits. Id.

In like manner, I find Respondents’ allegations of irreparable harm speculative. Respondents alleged irreparable harm and submitted affidavits in support of their motion for injunction, arguing that the emails contain attorney work product and privileged attorney-client communications concerning pending litigation involving the City of New Orleans and the City Council of New Orleans. Respondents state in their opposition that at the time of filing, they had no record or knowledge of what was produced to Relator. However, Respondents were the original creator and recipient of e-mails they argue are “privileged, exempt, or non-public,” yet Respondents failed to present specific facts or examples to support this allegation. Arguments are not evidence. Law Offices of Robert M. Becnel v. Ancale, 00-295 (La.App. 5 Cir. 9/26/00), 769 So.2d 761, 766. I therefore find that Respondents failed to prove that they would suffer irreparable injury should an injunction not issue in the matter sub judice.

The act sought to be restrained by the preliminary injunction in the instant matter is the further dissemination of e-mails, and Respondents sought retrieval of emails that were in the public domain for greater than three months. The primary purpose of injunctive relief is to prevent the occurrence of future acts that may 1 ¡¡result in irreparable injury, loss or damage to the applicant. La.Code Civ. Proc. art. 3601. “Undoing past acts is not the proper subject of a preliminary injunction.” Limousine Livery, Ltd. v. A Airport Limousine Serv., L.L.C., 07-1379, p. 9 (La.App. 4 Cir. 3/12/08), 980 So.2d 780, 786. “An injunction cannot be used to correct a ‘consummated wrong’ or enjoin a ‘fait accompli.’ ” Id. (quoting Bristol Steel and Iron Works, Inc. v. State, Dep’t of Transp, and Dev., 507 So.2d 1233, 1235 (La.1987); Verdun v. Scallon Bros. Contractors, Inc., 263 La. 1073, 1078, 270 So.2d 512, 513 (1972)). I find the grant of injunctive relief under the instant facts was not only to prevent future acts but past acts as well.

      . "A preliminary injunction is an interlocutory procedural device designed to preserve the status quo as it exists between the parties, pending trial on the merits.” Desire Narcotics Rehabilitation Center, Inc. v. State, Dept. of Health and Hospitals, 2007-0390, p. 4 (La. App. 4 Cir. 10/17/07). 970 So.2d 17, 20. A trial court is afforded great discretion to grant or deny the relief requested with respect to a preliminary injunction. See, e.g., Historic Restoration, Inc. v. RSUI Indemnity Co., 2006-1178, p. 11 (La.App. 4 Cir. 3/21/07) 955 So.2d 200, 208 (citing LHO New Orleans LM, L.P. v. MHI Leasco New Orleans, Inc., 02-0663, p. 3 (La.App. 4 Cir. 11/20/02), 833 So.2d 1010, 1012). An appellate court shall not disturb a trial court's findings with regard to a grant or denial of a preliminary injunction absent an abuse of discretion. Desire Narcotics, supra, 970 So.2d at 20.

      . The December 3, 2008 request to Veronica White indicates a hand delivery to counsel for the City of New Orleans, Penya M. Moses-Fields. (Exhibit 1 to New Orleans City Council's brief). On February 2, 2009, Relator Washington requested Ms. Moses-Fields’ assistance in supplementing the original response to her December 3, 2008 public records request. (Exhibit 2 to New Orleans City Council’s brief). While the set of circumstances surrounding these requests is peculiar, all parlies seem to agree that a public records request was made on December 3, 2008.

      . A lawyer who receives a writing that, on its face, appears to be subject to the attorney-client privilege or otherwise confidential, under circumstances where it is clear that the writing was not intended for the receiving lawyer, shall refrain from examining the writing, promptly notify the sending lawyer, and return the writing.
      La. Rules Prof. Conduct, 4.4(b).

      . This Court recognizes that the Louisiana Public Records Law contains the provision "except as otherwise provided in this Chapter or the Constitution of Louisiana." La. R.S. 44:l(2)(a). In Section 4.1 of that Chapter, entitled "Exceptions,” subsection (C) provides as follows:
      The provisions of this Chapter [La. R.S. 44] shall not apply to any writings, records, or other accounts that reflect the mental impressions, conclusions, opinions, or theories of an attorney or expert, obtained or prepared in anticipation of litigation or in preparation for trial.
      La. R.S. 44:4.1(C)(emphasis added). Thus, attorney-client communications are an exception to the Public Records law and are not a public record. Numerous affidavits were submitted to the trial court regarding attorney-client communications between City Council members and attorneys. The Council's Petition for Injunction listed approximately forty-nine lawsuits in which the City Council is currently engaged; the Council submits that it is engaged in approximately 500 to 1,500 such lawsuits in total.

      .The trial court's judgment ordered Relators to: 1) refrain from transferring any of the documents received in response to the records request to any other person or legal entity; 2) refrain from making public, or place, transfer, or post any of the records on the Internet or any other public place, and to refrain from making the records available or disseminating same to any other person; 3) refrain from deleting, destroying, or modifying the records produced; 4) produce the original disks and any and all copies of the emails within 24 hours of the hearing date; 5) to produce a list of all persons and/or legal entities to whom Relators provided copies of and/or allowed to review the emails. Rela-tors were further ordered to not maintain any copies whatsoever, electronically or otherwise, of the records.

      . [I]n New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971), the Government sought to enjoin the publication of excerpts from a massive, classified study of this Nation's involvement in the Vietnam conflict, going back to the end of the Second World War. The dispositive opinion of the Court simply concluded that the Government had not met its heavy burden of showing justification for the prior restraint. Each of the six concurring Justices and the three dissenting Justices expressed his views separately, but "every member of the Court, tacitly or explicitly, accepted the Near and Keefe condemnation of prior restraint as presumptively unconstitutional.” Pittsburgh Press Co. v. Human Rel. Comm’n, 413 U.S. 376, 396, 93 S.Ct. 2553, 2564, 37 L.Ed.2d 669 (1973) (Burger, C. J., dissenting). The Court’s conclusion in New York Times suggests that the burden on the Government is not reduced by the temporary nature of a restraint; in that case the Government asked for a temporary restraint solely to permit it to study and assess the impact on national security of the lengthy documents at issue.

        Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 558-59, 96 S.Ct. 2791, 2802-03, 49 L.Ed.2d 683 (1976).

      . The First Amendment to the U.S. Constitution provides:
      Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
      U.S. Const. Amend. I.

      . The entire thrust of the Government’s claim throughout these cases has been that publication of the material sought to be enjoined 'could,' or 'might,' or 'may' prejudice the national interest in various ways. But the First Amendment tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result. Our cases, it is true, have indicated that there is a single, extremely narrow class of cases in which the First Amendment’s ban on prior judicial restraint may be overridden. Our cases have thus far indicated that such cases may arise only when the Nation 'is at war,’ Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470 (1919), during which times '(n)o one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.’ Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357 (1931). Even if the present world situation were assumed to be tantamount to a time of war, or if the power of presently available armaments would justify even in peacetime the suppression of information that would set in motion a nuclear holocaust, in neither of these actions has the Government presented or even alleged that publication of items from or based upon the material at issue would cause the happening of an event of that nature. '(T)he chief purpose of (the First Amendment’s) guaranty (is) to prevent previous restraints upon publication.’ Near v. Minnesota ex rel. Olson, supra, at 713, 51 S.Ct., at 630.

        New York Times, supra, 403 U.S. at 725, 91 S.Ct. at 2147 (Brennan, J., concurring)(footnotes omitted).

      . An attorney who disseminates privileged or confidential records, may be held in violation of Rule 4.4 of the Louisiana Rules of Professional Conduct.

      . At issue in Nebraska Press Association was an order issued by a state trial court judge prohibiting the media from publishing or broadcasting accounts by Defendant to police officers or third parties with respect to a multiple homicide trial.

      . A disclosure of a communication or information covered by the attorney-client privilege or work product protection does not operate as a waiver if the disclosure is inadvertent and is made in connection with litigation or administrative proceedings, and if the person entitled to assert the privilege or work product protection took reasonably prompt measures, once the holder knew of the disclosure, to notify the receiving party of the inadvertence of the disclosure and the privilege asserted. Once notice is received, the receiving party shall either return or promptly safeguard the inadvertently disclosed material, but with the option of asserting a waiver. Even without notice of the inadvertent disclosure from the sending party, if it is clear that the material received is privileged and inadvertently produced, the receiving party shall either return or promptly safeguard the material, and shall notify the sending party of the material received, but with the option of asserting a waiver.
      La. C.C.P. art 1424(D).

      . "This Court has frequently denied that First Amendment rights are absolute and has consistently rejected the proposition that a prior restraint can never be employed.” Nebraska Press Ass’n, 427 U.S. at 569, 96 S.Ct. at 2808 (citing New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971); Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)).


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Henry Leonce SALASSI, IV. v. Bonnie Perry SALASSI.
    No. 08-CA-510.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 12, 2009.

      Nancy A. Miller, Attorney at Law, Me-tairie, LA, for Plaintif&Appellee.
    Melvin G. Ripp, Jr., Attorney at Law, Gretna, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

1 ¡¿Henry Leonce Salassi, IV filed suit against his former spouse Bonnie Perry Salassi seeking to revoke a gratuitous donation made in 1997. The trial judge revoked the donation and this appeal followed. For the foregoing reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Henry and Bonnie Salassi were married in Jefferson Parish on February 24, 1990 and have resided there since that time. On April 24, 1991, the succession of Henry Salassi, IV’s grandmother Thelma Gares Salassi was opened. Mr. Salassi’s father Henry Salassi, III and his aunt Joan Sa-lassi Rey each inherited from this succession a one-half undivided interest in property located at 208-210 Jefferson Avenue, Metairie, Louisiana (the “Jefferson Avenue property”). On September 10,1991 Henry Salassi, III donated to Henry Salassi, IV and his sister Jeanine Salassi his interest in the Jefferson Avenue property. That same day, Henry Salassi, IV and Jeanine Salassi purchased Joan Salassi Rey’s interest in the Jefferson Avenue property. Bonnie Salassi intervened in the act declaring that that the Jefferson Avenue property was Henry Salassi, IVs separate property, that the property 1¡¡formed no part of the community between them, and that no community funds were used to purchase Henry’s portion of the property (the “1991 Dual Declaration”).

Henry Salassi, IV and Jeanine Salassi thereafter each owned an undivided one-half interest in the Jefferson Avenue property. On September 4,1997, Henry gratuitously donated one-fourth of his one-half interest in the Jefferson Avenue property to his wife Bonnie (the “1997 donation”). Henry Salassi, IV filed for divorce on May 18, 2004, which was subsequently granted on February 15, 2006.

On February 9, 2007, Bonnie Salassi filed a Petition to Nullify the 1991 Dual Declaration. In the February 2007 petition, Bonnie alleged that she was “forced to sign the cash act of sale by means of fraud and duress.” In particular, Bonnie Salassi alleged that she was advised “that if she did not sign the act of sale as drafted she would be expelled from the home with their first minor child and deliver the second child on her own without any assistance from the Salassi family.” Bonnie also alleged that Henry lied to her regarding the meaning of the declaration. In response, Henry filed an Exception of Prescription and a Request For Attorney Fees, both of which were granted by the trial court. Bonnie Salassi filed a writ application in this Court requesting a review of the exception. The writ was denied by this Court on August 15, 2007. Salassi v. Perry, 07-C-574 (La.App. 5 Cir. 8/15/07) (unpublished writ disposition).

On June 6, 2007, Henry Salassi, IV filed a Petition to Revoke the 1997 donation based upon Bonnie Salassi’s alleged ingratitude. After a hearing on October 18, the domestic commissioner recommended that the Petition to Revoke be denied, and an interim judgment was signed to that effect. Henry Salassi filed an Objection to Domestic Commissioner Order on October 22, 2007. On October 30, 2007, the trial court ordered that an evidentiary hearing would be held on | ¿December 14, 2007 to address the Petition to Revoke. Bonnie Salassi filed a Memorandum in Opposition to Revocation of Gratuitous Donation on October 30, 2007. In the Memorandum, Bonnie claimed that the statements made in her Petition to Nullify the 1991 Dual Declaration were subject to a qualified privilege because they were made during the course of a judicial proceeding. Further, Bonnie complained that because her Petition to Nullify the 1991 Dual Declaration had previously been dismissed as prescribed, the trial court never considered the “merits regarding the fraudulent dual declaration located within the act of cash sale.” An evidentiary hearing on the Petition to Revoke the 1997 donation was held on December 14, 2007. At the conclusion of the hearing, the district judge ruled in favor Henry Salassi, IV and thereafter signed a judgment revoking the 1997 donation. This timely appeal followed.

Bonnie Salassi assigns three errors to the proceedings below. First, she alleges that the trial court erred in not allowing testimony concerning the 1991 Dual Declaration and sale of the Jefferson Avenue property. Second, she contends that the trial court erred in revoking the 1997 donation because the donation was irrevocable under Louisiana law. Finally, she claims that the trial court erred by failing to declare the 1991 Dual Declaration void for fraud and the Jefferson Avenue residence to be community property. We will consider Bonnie Salassi’s second assignment of error before her first and third assignments because there would be no need to consider her first and third assignments should we find merit in her second assignment.

SECOND ASSIGNMENT OF ERROR

In her second assignment of error, Bonnie argues that the 1997 donation was irrevocable under Louisiana law and that the trial court therefore erred in revoking |fithe donation. Bonnie alleges that the 1997 donation is governed by La. R.S. 9:2351, which reads thus:

Every donation made after twelve o’clock noon, July 29, 1942, by a married person to his or her spouse shall be as irrevocable as if made to a stranger. However, where the donation is made by notarial act the donor may reserve the right of revocation by express stipulation therein. Any right of revocation so reserved unless renounced as provided in R.S. 9:2352, may be exercised at any time during the life of the donor, whether or not the marriage is then in existence, and whether or not the donee is then alive.

According to Bonnie, the 1997 donation is irrevocable because Henry did not expressly reserve the right of revocation in the act of donation.

Donations inter vivos are generally irrevocable. Busse v. Lambert, 00-1032 (La.App. 5 Cir. 10/31/00), 773 So.2d 182, 183. Interspousal donations were formerly always revocable under former La. C.C. art. 1749, however, that article was repealed by Acts 1942, No. 187 and replaced with La. R.S. 9:2351. In discussing the change in the law, the Supreme Court opined that:

[t]he effect of this revision in the law of donations between married persons was to make interspousal donations as irrevocable as any other donation. Therefore, since 1942, revocation of donations between spouses must be governed by the same articles which govern all inter vivos donations.
Larocca v. Larocca, 597 So.2d 1000, n. 11 (La.1992)

Donations inter vivos can be revoked on account of the ingratitude of the donee. La. C.C. art. 1556. Revocation on account of ingratitude can only take place if the donee has “attempted to take the life of the donor” or if the donee “has been guilty towards [the donor] of cruel treatment, crimes, or grievous injuries.” La. C.C. art. 1557.

There is a considerable paucity of Louisiana cases that have addressed what constitutes “cruel treatment, crimes, or grievous injuries.” In Perry v. Perry, 507 |6 So.2d 881 (La.App. 4 Cir.1987), the Fourth Circuit Court of Appeal came to the conclusion that;

“[i]njuries” include any act naturally offensive to the donor. It may be the adultery of one of the spouses.... The act may consist of slanderous charges; of a seizure levied by the donee against the donor of whom he is creditor; or, in a proper case, even of the refusal to consent to the revocation.
Perry, 507 So.2d at 833 (emphasis added).

In Spruiell v. Ludwig, 568 So.2d 133 (La.App. 5 Cir.1990), this Court revoked a donation on the basis of ingratitude when the donee referred to the donor as a “crooked thief’ and accused her of violating federal racketeering statutes. We reasoned that the donees “sought to obtain more of the family property for themselves” through an intentional scheme which “implied unfounded claims of criminal activity.” Id. at 138. Other Louisiana courts have held that cruel treatment or grievous injury sufficient to revoke a gratuitous donation may include seizing property belonging to a parent, filing suit against a parent alleging criminal activity, or slandering the memory of the donor. See, e.g., Sanders v. Sanders, 33,865 (La.App. 2 Cir. 9/27/00), 768 So.2d 739 (donee denied donor was his father and told third parties that he wished donor would die); Whitman v. Whitman, 31,814 (La.App. 2 Cir. 3/31/99) 730 So.2d 1048 (donee committed adultery).

Mindful of these principles, we conclude that Bonnies argument is misplaced. The Supreme Court has indicated that the law of donations with respect to married persons is the same as the law with respect to unmarried persons. Therefore donations inter vivos to a spouse can be revoked due to the ingratitude of the same spouse. In her petition for nullity, Bonnie alleged that Henry and Henrys father forced her to sign the 1991 dual declaration by means of fraud and duress. In addition, Bonnie alleged “that if she did not sign the act of sale as drafted she would be expelled from the home with their first minor child |Yand deliver the second child on her own without any assistance from the Salassi family.” In his Petition to Revoke, Henry noted that “[b]ased upon the blatantly untruthful, inaccurate, and defamatory allegations contained in Ms. Salassi’s petition, Mr. Salassi has suffered grievous injuries sufficient to revoke his donation as Ms. Salassi’s actions constitute acts naturally offensive to Mr. Salassi.” At the conclusion of the hearing, the trial court stated,

The allegations contained in [Bonnie’s] petition, I believe, arise to cruel treatment, crimes, or egregious injuries under [former La. C.C. art.]1560. The allegations made in the petition allege that the Plaintiff, the father of, then two year old Christina and, at the time, Heather being an unborn fetus, eight months term, were going to be kicked out into the street with no place to live, that no support of any kind would be given, and that the infant would be born under those conditions.
Obviously, the record is clear that those children are now approximately fifteen and fourteen years of age. I certainly understand the testimony of the Plaintiff where those hurtful words caused him great distress, not to mention the stress that could occur if those children learned of the allegations contained in the petition.
And, for those reasons, I find the testimony of the husband, the Plaintiff, I find his testimony more credible. And I find question with the contradictory statements made by the Defendant.

When reviewing findings of fact the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the conclusion was a reasonable one. Adams v. Rhodia, Inc., 07-2110, p. 10 (La.5/21/08), 983 So.2d 798, 806. In this case, the trial court concluded that the allegations contained in Bonnies petition rose to the level of cruel treatment and grievous injury under former La. C.C. art. 1560. We cannot conclude that this finding was unreasonable. Consequently, this assignment of error has no merit and we can now discuss Bonnie Salassis first and third assignments of error.

FIRST ASSIGNMENT OF ERROR

)sIn her first assignment of error, Bonnie Salassi contends that the trial court erred by refusing to allow testimony regarding the succession of Thelma Gares Salassi. More specifically, she claims that she should have been able to elicit testimony demonstrating that Henry’s father Henry Salassi, III perpetrated fraud on the court by declaring that he and Joan Salassi Rey were the only lawful heirs of Thelma Gares Salassi. Bonnie Salassi alleges there was a third lawful heir of Thelma Salassi. Bonnie Salassi alleges that this testimony is admissible pursuant to Louisiana Code of Evidence articles 607 and 803(15).

La. C.E. art. 607

La. C.E. art. 607(A) provides that the “credibility of a witness may be attacked by any party, including the party calling him.” Moreover, “a party ... may examine [the witness] concerning any matter having a reasonable tendency to disprove the truthfulness or accuracy of his testimony. The trier of fact determines the credibility of witnesses, and within the bounds of rationality, may accept or reject the testimony.” State v. Wilson, 07-961, p. 9 (La.App. 5 Cir. 4/15/08), 984 So.2d 870, 875. It is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence. State v. Toussaint, 98-1214, p. 6 (La.App. 5 Cir. 5/19/99), 734 So.2d 961, 964. When findings of fact are based on the credibility of witnesses, the manifest error standard demands great deference to the trier of fact’s findings. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

Bonnies reliance on La. C.E. art. 607 is misplaced. Bonnies counsel was given extensive latitude to attack Henrys credibility at the hearing. For example, during Henrys cross examination, Henrys counsel objected to a line of questioning regarding a mortgage placed on the Jefferson Avenue property and the alleged use of community funds to pay off the note. Bonnies counsel argued that |9he was attacking Henrys credibility. The trial judge overruled the objection and allowed the line of questioning to proceed. Every other objection made by Henrys counsel related to argumentative questions, questions that had already been asked and answered, or a request to read from a document already admitted into evidence. Bonnies counsel was given an additional opportunity to cross examine Henry during Henrys rebuttal on the Rule to Revoke, but declined to do so.

When the hearing had concluded, the trial judge determined that Henrys testimony was more credible than Bonnies. It is not within the province of this Court to assess the credibility of testimony or the credibility of witnesses. It is within the province of this Court to conclude that the trial judge gave Bonnie sufficient latitude to attack Henrys credibility.

La. C.E. art. 803(15)

La. C.E. art. 803(15) provides that “[a] statement contained in a document purporting to establish or affect an interest in property” is not hearsay “if the matter stated was relevant to the purpose of the document.” The circumstances under which dispositive documents are executed and the requirement that the recital be germane to the purpose of the document are believed to be adequate guarantees of trustworthiness. Fed. R. Evid 803(15), note.

La. C.E. art. 803(15) has no bearing on this case. Bonnie’s counsel argued at the hearing that Henry and his family had committed a “fraud” upon the court because of a misrepresentation in the judgment of possession in Thelma Gares Salas-si’s succession. According to Bonnie, there were actually three lawful heirs instead of two as indicated in the judgment. Nowhere in the judgment of possession is a third lawful heir mentioned. For La. C.E. art. 803(15) to apply to the instant appeal, there must be a statement contained in the judgment of possession purporting to establish or affect an interest in property. Bonnie cannot 1 margue that the judge should have allowed testimony regarding the supposed third heir under La. C.E. art. 803(15) if the document itself does not mention the third heir. Moreover, Henry’s counsel objected to the testimony regarding Thelma Salassi’s succession on the basis of relevance, not that the judgment of possession was inadmissible hearsay. Bonnie’s argument is better addressed in terms of the aforementioned discussion of credibility. We find that the trial judge’s decision to disallow the testimony was reasonable. Accordingly, this assignment of error has no merit.

THIRD ASSIGNMENT OF ERROR

In her final assignment of error, Bonnie alleges that the trial court erred by failing to declare 1991 Dual Declaration void for fraud and duress. Although it is not entirely clear from her brief, Bonnie appears to argue that La. C.C. art. 2342(B) is dispositive to this assignment of error. La. C.C. art. 2342(B) provides:

[Wjhen [a spouse declares that property has been purchased with his or her separate property], an alienation, encumbrance, or lease of the thing by onerous title, during the community regime or thereafter, may not be set aside on the ground of the falsity of the declaration.

Bonnie contends that La. C.C. art. 2342(B) permits her to attack the 1991 Dual Declaration because the Jefferson Avenue property has not been alienated, encumbered, or leased since 1991. Therefore, the argument follows, the trial court “erred in not declaring the property acquired by Henry Leonce Salassi, IV and Bonnie Perry Salassi ... to be community property.”

The legal regime of community acquets and gains applies to all spouses domiciled in Louisiana. La. C.C. art. 2334. Things in possession of a spouse during the legal regime are presumed to be community property, but either spouse may prove that they are separate property. La. C.C. art. 2340. Under the doctrine of estoppel by deed, a declaration by a spouse in an act of acquisition that things In are acquired with separate funds as separate property may not be controverted by the other spouse if the other spouse concurred in the act of acquisition. La. C.C. art. 2342(A). Even if the other spouse concurs in the act, the concurring spouse is not estopped from asserting that the property is community property where he or she concurred due to error, fraud, or duress. See, e.g., Rousseau v. Rousseau, 209 La. 428, 24 So.2d 676, 677 (1946). However, a person “who has a right to set aside such transactions on the ground of the falsity of the declaration ... shall have six months ... to initiate proceedings to set aside such transactions or otherwise be forever barred from exercising such right or cause of action.” La. C.C. art. 2342(C)(2).

Consent may be vitiated by error, fraud, or duress. La. C.C. art 1948. A vice of consent renders a contract a relative nullity. La. C.C. art.2031. An “[a]ction of annulment of a relatively null contract must be brought within five years from the time the ground for nullity either ceased, as in the case of incapacity or duress, or was discovered, as in the case of error or fraud.” La. C.C. art.2032. Thus, there is a five year prescriptive period to annul a relatively null contract on account of fraud or duress. More than seventeen years have passed since the 1991 declaration was executed. Bonnie has presented no evidence to this Court which would otherwise establish that prescription has not run.

Bonnie’s reliance on Levatino v. Levatino, 506 So.2d 858 (La.App. 1 Cir.1987) in her attempt to evade the prescriptive period is unavailing. In Levatino, the plaintiff signed a document declaring that an immovable had been purchased with the defendant’s separate property. After the plaintiff and defendant separated four years later, the plaintiff sought a declaratory judgment that the immovable was community property on the basis that she had been induced to sign the declaration due to the fraudulent misrepresentations of the defendant. Levatino, 506 So.2d at |12 859. The defendant argued that the action was prescribed based on the six month prescriptive period of La. C.C. art. 2342(C)(2). The court of appeal disagreed, holding that “the controlling prescriptive period is the ten years as set forth in La.C.C. art. 3499” because the plaintiff had “set forth facts which if proven would constitute [mutual] error.” Id. at 863. We agree with Bonnie that Levatino stands for the general proposition that a dual declaration may be attacked and set aside on account of the falsity of the declaration. However, the court held that the right to attack a declaration was subject to a ten year prescriptive period. Bonnie has alleged fraud in her petition, a claim for which must be brought within five years from the time the ground for nullity either ceased or was discovered. Even if we were to use the ten year prescriptive period of La. C.C. art. 3499 applicable to mutual error, Bonnie’s claim would have still prescribed more than seven years ago.

Accordingly, this assignment of error has no merit.

CONCLUSION

Accordingly, for the reasons stated, the judgment revoking the 1997 donation is affirmed. Costs to be paid by appellant.

AFFIRMED.

      . La. C.C. art. 1557 was formerly codified in La. C.C. art. 1560. It was moved to its present location by Acts 2008, No. 204, effective January 1, 2009. Acts 2008, No. 204 changed the law in part by eliminating the third ground for revoking a donation for ingratitude; refusing the donor food when in distress.

      . La. C.C. 3499 states in toto, "[ujnless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years."