author: DRAKE, J.

text:
    CITIZENS AGAINST MULTI-CHEM and Marcella Manuel v. LOUISIANA DEPARTMENT OF ENVIRONMENTAL QUALITY.
    No. 2013 CA 1416.
    Court of Appeal of Louisiana, First Circuit.
    May 22, 2014.
    Rehearing Denied June 13, 2014.

      Molly Wells, Student Attorney Corinne Van Dalen, Tutane Environmental Law Clinic, New Orleans, Louisiana, for Appellant, Citizens Against Multi-Chem and Marcella Manuel.
    Herman Robinson, Executive Counsel, Jackie M. Marve, Regional Counsel, Claudia Rush, Elliott Vega, Ann B. Hill, Baton Rouge, Louisiana, for Appellee, Louisiana Department of Environmental Quality.
    Before PARRO, GUIDRY, and DRAKE, JJ.
   DRAKE, J.

I ¿This appeal challenges the district court’s dismissal of a petition for judicial review of a permit action taken by the Louisiana Department of Environmental Quality (“LDEQ”) pursuant to an exception of lack of subject matter jurisdiction. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The facts forming the basis for this appeal are not disputed. The appellants, Citizens Against Multi-Chem and Marcella Manuel (“Citizens”), filed this appeal contesting the dismissal of their petition for judicial review, which challenged the issuance of a minor source, or “small source,” air permit to Multi-Chem Group, L.L.C. (“Multi-Chem”). On February 10, 2012, Multi-Chem filed an application for expedited permit processing with the LDEQ, requesting a minor source air permit for its facility, the Maurice Chemical Distribution Facility, located between Maurice and Indian Bayou, Louisiana. The purpose of the facility was to store, transfer, repackage, and blend chemicals utilized in oil and gas production operations. On March 29, 2012, the LDEQ issued air permit 2940-00344-00 to Multi-Chem. Notice of this final permit action was sent via certified mail to Multi-Chem that same day. Mul-ti-Chem received the notice on April 5, 2012.

On November 14, 2012, Citizens filed a petition seeking judicial review of the LDEQ’s permit action, asserting that the issuance of the minor source air permit to Multi-Chem threatened the health, safety, and welfare of their members. In the petition, Citizens raised four assignments of error, contending in the bulk of those allegations that the LDEQ violated its public trustee duty in issuing the permit by failing to perform an environmental assessment prior to issuing the | spermit. Citizens also requested a stay of the effectiveness of the permit pending the judicial review proceedings. We note that prior to filing its petition for judicial review, Citizens failed to raise its concerns regarding the issuance of Multi-Chem’s permit in advance of the LDEQ’s final decision on the permit. See La. R.S. 30:2014.3(B) and (C).

The LDEQ filed a declinatory exception raising the objection of lack of subject matter jurisdiction and/or a peremptory exception of no cause of action and/or alternatively, a motion to dismiss. Under La. R.S. 30:2050.21, an “aggrieved person” is given the right to appeal a final permit action to the Nineteenth Judicial District Court. The petition for judicial review of the LDEQ action must be filed “within thirty days after notice of the action or ruling being appealed has been given.” The LDEQ argued that the determinative date for commencing the 30-day appeal delay was the date on which Multi-Chem received notice of the issuance of the permit. The permit was issued on March 29, 2012. Notice of this final permit action was sent via certified mail to Multi-Chem on |4March 29, 2012, who received it on April 5, 2012. Thus, according to the LDEQ, Citizens’s right to appeal the permit decision prescribed thirty days after Multi-Chem received notice of the issuance of its permit, making the petition for judicial review, filed on November 14, 2012, untimely.

Following the filing of opposition and reply memoranda to the exceptions, the district court held a hearing on the LDEQ’s exceptions. The district court denied the LDEQ’s objection of no cause of action, but granted the objection of lack of subject matter jurisdiction and dismissed Citizens’s petition for judicial review, with prejudice. A judgment evidencing the ruling was signed on April 8, 2013. Citizens now appeals.

LAW

Subject Matter Jurisdiction

A court’s power to grant relief is premised upon its subject matter jurisdiction over the case or controversy before it, which cannot be waived or conferred by consent. Wilson v. City of Ponchatoula, 2009-0303 (La.10/9/09), 18 So.3d 1272. The district courts have exclusive original jurisdiction over most matters, and concurrent original jurisdiction with trial courts of limited jurisdiction. See La. Const, art. V, § 16. Subject matter jurisdiction is a threshold issue, insofar as a judgment rendered by a court that has no jurisdiction over the subject matter of the action or proceeding is void. See La. C.C.P. art. 2; IberiaBank v. Live Oak Circle Dev., L.L.C., 2012-1636 (La.App. 1 Cir. 5/13/13), 118 So.3d 27, 30.

The objection of lack of subject matter jurisdiction is used to question the court’s legal power and authority to hear and determine a particular class of actions or proceedings based upon the object of the demand, the amount in dispute, or the value of the right asserted. See La. C.C.P. art. 2; IberiaBank, 118 So.3d at 30. The objection of lack of subject matter jurisdiction may apply in district courts Rwhen there are special jurisdictional provisions for administrative agency determinations. See La. Const, art. V, § 16(A). La. R.S. 23:1310.3.

Subject matter jurisdiction cannot be waived by the parties, and the lack thereof can be recognized by the court at any time, with or without a formal exception. See La. C.C.P. arts. 3 and 925(A)(6); Iberia-Bank, 118 So.3d at 30. A declinatory exception pleaded before or in the answer must be tried and decided in advance of the trial of the case. La. C.C.P. art. 929. At the trial of a declinatory exception, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. La. C.C.P. art. 930.

District courts are granted appellate jurisdiction to review administrative decisions only as provided by the legislature or the constitution. Thus, a threshold issue is whether the district court had subject matter jurisdiction over Citizens’s appeal of LDEQ’s permit grant. If the district court lacked jurisdiction to adjudicate the appeal, this court also lacks jurisdiction, save to correct the error of the lower court in entertaining the appeal. Louisiana Land Acquisition, LLC v. Louisiana Dep’t of Envtl. Quality, 2011-2037 (La.App. 1 Cir. 7/18/12), 97 So.3d 1144, 1145, writ granted in part, 2012-1872 (La.11/16/12), 103 So.3d 358. In this case, Citizens invoked, and the district court exercised, appellate jurisdiction pursuant to La. R.S. 30:2050.21, which provides, in pertinent part:

A. An aggrieved person may appeal devolutively a final permit action, a final enforcement action, or a declaratory ruling only to the Nineteenth Judicial District Court. A petition for review must be filed in the district court within thirty days after notice of the action or | ^ruling being appealed has been given. The district court shall grant the petition for review.
C. The department shall not be required to file an answer to the petition for review.
F. The provisions of R.S. 49:964(C), (F), and (G), including the standard of review, shall apply to appeals provided in this Section.

Under subsection 2050.21(F), review is conducted in accordance with the provisions of subsections 964(C), (F), and (G), without a jury, and is confined to the agency record. The district court functions in its capacity as an appellate court and should not reverse a substantive decision of LDEQ unless it can be shown that the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental protection. Louisiana Land Acquisition, 97 So.3d at 1146.

Under subsection 2050.21, reviewability of final permit actions is limited to cases where notice has been given, and a petition for judicial review is filed within thirty days from that notice. Notice accomplished pursuant to La. R.S. 30:2050.23 triggers the running of the 30-day appeal delay. That statute provides, in pertinent part:

A. (1) Notice to an applicant for a permit, a respondent, a petitioner for a declaratory ruling, or a party to an adjudicatory hearing shall be given by certified mail return receipt requested.
(2) Notice to other persons shall be given by ordinary mail.
(3) In all cases, notice may be given by delivery.
B. When a party is represented by an attorney or has appointed an agent for service of process, notice may be given to the attorney or the agent.
C. (1) Notice to an applicant for a permit, a respondent who is a party, an intervenor, a petitioner for a declaratory ruling, or a person who submits a written comment shall be given at the address in the application, the request for a hearing, the request for an intervention, the petition, or the comment.

17Subsection 2050.23 uses the mandatory phrase, “shall be given” throughout. It requires that notice to a person submitting written comments “shall be given” at the address listed in the comment. Only six persons are specifically mentioned in the notice provision, including: (1) an applicant for a permit; (2) a respondent who is a party; (3) an intervenor; (4) a petitioner for a declaratory ruling; (5) a party to an adjudicatory hearing; and (6) a person who submits a written comment. This listing includes those persons who are actively participating in proceedings held before the LDEQ. Construing subsections 2050.21 and 2050.23 together, LDEQ is statutorily required to notify those persons specifically listed in subsection 2050.23 of its decision, and notice accomplished in accordance with that provision constitutes “notice of the action” necessary to commence the running of the 30-day appeal delay in subsection 2050.21. See In re Natural Resources Recove'ry, Inc., 98- 2917 (La.App. 1 Cir. 2/18/00), 752 So.2d 369, 375, writs denied, 2000-0806 and 2000-0836 (La.5/26/00), 762 So.2d 1104 and 1105.

Here, Citizens argues that it had no notice of LDEQ’s decision to grant the minor source air permit to Multi-Chem. Because Citizens did not receive notice, it argues that the 30-day appeal delay period had not tolled; thus, its petition for judicial review was timely. See La. R.S. 30:2050.21(A).

Assuming all other requirements for judicial review in subsection 2050.21 were met, Citizens could only fall within the category of “a person who submits a written comment.” See La. R.S. 30:2050.23(0(1). Receiving no public comments prior to permit issuance, LDEQ did not send notice to any party within this description. We hold that LDEQ complied with all notice provisions it was legally ^required to give. Pursuant to La. R.S. 30:2022(A)(1), the LDEQ notified, in writing, the Vermillion Parish Police Jury and all public interest groups and individuals who had requested notice and provided a mailing address. The LDEQ also posted information regarding the receipt of Multi-Chem’s application on its website. Citizens had the opportunity to submit a comment or request notice of permit applications in Vermillion Parish, but failed to do so.

Citizens also argues that the LDEQ failed to notice the draft permit, have a public comment period, and notify them of the issuance of Multi-Chem’s minor source air permit. However, despite the absence of a formal public comment period on Multi-Chem’s draft permit, notice of the application was provided fully in accordance with law. For new facilities that are major sources of air emissions, the LDEQ provides notice of a proposed permit and holds a formal public comment period. See LAC 33:111.531. Because Mul-ti-Chem’s permit is for a minor source, the regulations do not require that a proposed permit be noticed or that a public comment period be held. The decision to do so rests within the sound discretion of the LDEQ. See LAC 33:III.531.A.l. In the exercise of discretion, the LDEQ is entitled to deference by the court. See In the Matter of Recovery I, 93-0441 (La.App. 1 Cir. 4/8/94), 635 So.2d 690, writ denied, 94-1232 (La.7/1/94), 639 So.2d 1169. The LDEQ states that while it may, in its discretion, notice a draft permit and hold a public comment period, this determination is guided and influenced by public interest in the application. In cases where the | interest of the public is brought to the attention of the LDEQ, usually through the submission of comments, the LDEQ exercises its discretion to provide public notice and an opportunity for public comments.

The crux of Citizens’s appeal is that, although it did not participate in the application review process, it would have this court declare that its failure to participate in the process allows the legally mandated appeal delays to fall to the wayside so Citizens may remain free to bring an appeal at any time. The statutes and case law do not envision an unlimited amount of time in which to appeal. An aggrieved person’s delay for seeking judicial review of a LDEQ permit action cannot be unlimited; there must be finality in the regulatory process. In order for the LDEQ to provide notice to aggrieved persons, the LDEQ must know whom to give notice to and where to send the notice. Although Citizens may fall into the category of “aggrieved persons,” pursuant to La. R.S. 30:2050.21 and 2050.23, LDEQ provided all the notice required by law when it received Multi-Chem’s minor source air permit. Citizens’s remedy lies with the legislature.

In its reasons for ruling, the district court stated that, because there were no written comments submitted, nor was notice required to be given to any parties pursuant to La. R.S. 30:2050.23, the only notice required in this case was notice to the applicant, Multi-Chem. The 30-day appeal delay began to run from the date LDEQ gave notice to Multi-Chem. In sustaining LDEQ’s exception raising the objection of lack of subject matter jurisdiction, the district court ruled that it had no jurisdiction over Citizens’s petition for judicial review, as it was filed outside of the 30-day appeal delay period. We agree.

J^DECREE

For the foregoing reasons, the judgment of the district court is hereby affirmed. All costs of this appeal are assessed to Citizens.

AFFIRMED.

      . LAC 33:111.503.B(2) provides, in pertinent part:
      Small Source Permit. The owner or operator of a stationary source which is not a Part 70 source as defined in LAC 33:111.502 may apply for a small source permit provided the source emits and has the potential to emit less than 25 tons per year of any criteria pollutant and 10 tons per year of any toxic air pollutant.

      . The LDEQ is bound by the public trustee requirements as set forth La. Const, art. IX, § 1. See Save Ourselves, Inc. v. Louisiana Environmental Control Com'n, 452 So.2d 1152, 1156-58 (La.1984), and In re Rubicon, Inc., 95-0108 (La.App. 1 Cir. 2/14/96), 670 So.2d 475, 482. This court has clarified the public trustee responsibilities by listing three questions that the LDEQ must address in an environmental impact analysis, or "IT Analysis”: whether (1) the potential and real adverse environmental effects of a proposed project have been avoided to the maximum extent possible; (2) a cost-benefit analysis of the environmental impact costs balanced against the social and economic benefits of the project demonstrates that the benefits outweigh the costs; and (3) are there alternative projects or alternative sites or mitigating measures which would offer more protection to the environment than the proposed project without unduly curtailing non-environment benefits. See In re Rubicon, 670 So.2d at 482. This court has stated that such an analysis is required only in "contested cases involving complex issues and not to uncontested matters involving only simple issues.” Id. at 488. To secure compliance with the Supreme Court and First Circuit opinions, the legislature enacted La. R.S. 30:2018, which requires permit applicants to submit an Environmental Assessment Statement ("EAS”) to be utilized by the LDEQ in satisfaction of its public trustee requirements. The EAS consists of the applicant’s answers to the IT questions. This statute limits the submission of an EAS to applicants who apply for new permits and major permit modifications. La. R.S. 30:2018(E)(2) specifically excludes the submission of an EAS for a minor source air permit application. Thus, the LDEQ is not required to perform an IT Analysis on an uncontested minor source air permit.

      . A hearing on the stay was held on January 7, 2013. The district court entered a stay, which would be automatically removed upon the occurrence of one of the following events: (1) the LDEQ develop an analysis, showing that it had considered and addressed problems regarding the permit: (2) the LDEQ file the administrative record; or (3) the passage of 45 days after the issuance of the stay order. The stay was lifted after the LDEQ filed the administrative record with the district court on January 16, 2013.

      . We note that La. R.S. 30:2050.21, pertaining to judicial review of permit actions, and La. R.S. 30:2024, regarding finality of permit actions, are separate and distinct provisions setting forth different procedures for review. This court has previously ruled that La. R.S. 30:2024 pertains exclusively to permit applicants and has no bearing on the appellate review provisions afforded to other "aggrieved persons” under La. R.S. 30:2050.21. Louisiana Land Acquisition, 97 So.3d at 1147; ■In re Natural Resources Recovery, Inc., 98-2917 (La.App. 1 Cir. 2/18/00), 752 So.2d 369, 374, writs denied, 2000-0806 and 2000-0836 (La.5/26/00), 762 So.2d 1104 and 1105. Because Citizens is not a permit applicant, La. R.S. 30:2024 is not applicable to this case.

      . La. R.S. 30:2022(A)(1) states:
      Any person seeking a permit, license, registration, variance, or LPDES variance shall file a written application for such with the secretary. Excluding applications relative to medical and dental devices, the secretary shall promptly send a notice of the subject matter of each application to the governing authority of the parish affected by the application and any public interest group or individual within the affected parish who has requested notice in writing and provided a mailing address. The notice of a permit, license, or registration application shall be provided within thirty days after receipt of the application. The parish governing authority shall promptly notify each municipality within said parish affected by the application.

      . In its brief, the LDEQ argues that Citizens failed to state a cause of action in its petition for judicial review. Based on the foregoing opinion, because we agree with the district court that it has no subject matter jurisdiction over Citizens’s petition for judicial review, we pretermit any discussion of LDEQ’s arguments regarding Citizens's alleged failure to state a cause of action.


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge. WICKER, J.,

license: Public Domain

text:
    William J. NEWTON and Elaine Newton v. Dr. Gene Lewis DONGIEUX, Sr. and Rhonda Barras Dongieux.
    No. 13-CA-776.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 24, 2014.

      Carl A. Butler, Tiffany M. Fleming, Michael Fantaci, Attorneys at Law, Metairie, LA, for Plaintiffs/Appellees.
    Joshua S. Force, Dorothy S.W. Lawrence, Ashley G. Coker, Emily Ross, Attorneys at Law, New Orleans, LA, for Defendants/Appellants.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, MARC E. JOHNSON, ROBERT A. CHAISSON, and STEPHEN J. WINDHORST.
   MARC E. JOHNSON, Judge.

|2In this redhibition case, Defendants/sellers, Gene Dongieux, Sr. and Rhonda Dongieux, appeal a judgment finding them liable to Plaintiffs/purchasers, William Newton and Elaine Newton, for damages in the amount of $50,815.00 and attorney’s fees in the amount of $42,182.50, plus court costs and judicial interest. For the reasons that follow, we reverse.

FACTS & PROCEDURAL HISTORY

Plaintiffs, the Newtons, filed a petition for damages on October 9, 2007 seeking damages in redhibition and breach of contract. They alleged that Defendants, the Dongieuxes, failed to disclose the extent of flooding around the pool and failed to disclose that the carport area flooded. The Newtons further alleged that the Don-gieuxes failed to complete the agreed upon repairs prior to the |sNewtons taking possession of the property. The Newtons sought redhibitory damages, specific performance for the terms of the contract, and attorney’s fees.

The matter proceeded to a bench trial on March 25, 2013. The record shows that in December 2006, Mrs. Newton was on a Christmas tour of homes in River Ridge when she fell in love with the home at 228 Garden Rd., owned by the Dongieuxes. Although the house was not for sale, Mrs. Newton expressed her desire to purchase the home to Ms. Dongieux. After several conversations, the Dongieuxes indicated they would sell the home for $1.4 million. Without any negotiations, the Newtons agreed to purchase the home for the requested price.

On February 5, 2007, the parties executed a property disclosure. On the property disclosure form, the Dongieuxes checked yes to question number four under “Section 1: Land,” which asked, “Has any flooding, water intrusion, accumulation, or drainage problem been experienced with respect to the land? If yes, indicate the nature and frequency of the defect at the end of this section.” The Dongieuxes explained on the form that “during a very hard rain, the backyard ponds water. Drains quickly.” Under “Section 3: Structure,” the Dongieuxes answered no to question 12, which asked, “Has any structure on the property ever taken water by flooding (rising water or otherwise)?”

At some point after signing the property disclosure form and prior to the Act of Sale, Mrs. Newton asked Ms. Dongieux about the “ponding” problem. According to Mrs. Newton, Ms. Dongieux explained that when it rained hard, a puddle formed where the sidewalks meet in the backyard by the pool. Ms. Dongieux testified that she gave Mrs. Newton the example of when she was having a birthday party for a friend and it rained before the party. Ms. Dongieux explained to Mrs. Newton that it stopped raining two hours before the party, during Rwhich time the water drained but left a puddle where the sidewalks crossed. Ms. Dongieux indicated that she was able to soak up the remaining puddle with a beach towel. Mrs. Newton testified that she was satisfied with this answer and did not obtain a specific inspection regarding the ponding or drainage in the backyard. Mr. Newton likewise stated that he was satisfied with the explanation, as relayed by his wife after she spoke with Ms. Dongieux, and did not seek a specific inspection regarding the ponding issue.

On February 15 and 16, 2007, the parties executed an agreement to purchase or sell. The agreement contained a waiver of redhibition clause that indicated the property was to be sold “AS IS” with a full waiver of redhibition of rights as explained in an attached addendum, which was also signed by all parties.

On February 21, 2007, the Newtons had the property inspected by Robyn Borde-lon, a licensed home inspector with House Call Home Inspection. Ms. Bordelon testified that she was not hired to inspect any issues regarding any flooding or ponding in the backyard, but rather her inspection was limited to the area directly around the foundation of the home and cabana area.

Also, on February 23, 2007, the Newtons had the pool inspected by Kevin Brouphy. Mr. Brouphy testified that he inspected the decking of the pool, the surface of the pool and the pool equipment. He stated that he noted a few things, but nothing exorbitant. He explained that he did not inspect the elevation of the pool or the grading around the pool and was not qualified to give an opinion about the elevation or grading.

The parties proceeded to the Act of Sale on April 30, 2007. The Act of Sale contained an express waiver of redhibition, which the Newtons acknowledged by signing immediately beneath the waiver clause. Although the Act of Sale occurred in April, the Newtons did not move into the house until after the end of June | ¡¡because of an agreement between the parties that allowed the Dongieuxes to stay in the home until then.

The Newtons testified that on the day they received the keys to the property, it started raining and the backyard flooded. They explained that water drained into the pool and the carport behind the cabana flooded. They subsequently learned that the pool was eight to nine inches below the surrounding ground, so the water drained into the pool during a hard rain. In an attempt to alleviate the pool problem, the Newtons explored installing drainage, but discovered subsurface drains already existed. The Newtons ultimately had to raise the pool eight or nine inches, at a cost of $45,065.00.

To fix the carport flooding, the Newtons had to raise the slab approximately two and a half to three inches, at a cost of $4,600.00. While raising the slab, the Newtons learned that the stairs in the carport that led to the upstairs apartment were rotted from water exposure and had to be fixed. Since this remedial work, the Newtons have not experienced any flooding in the carport.

At the conclusion of trial, the trial court took the matter under advisement. It issued a written judgment on May 16, 2013 in favor of the Newtons for their redhibition claim, but denied their breach of contract claim. The trial court awarded $50,815.00 in damages, which included $1,150.00 for pool cleaning, $45,065.00 for raising the pool, and $4,600.00 for leveling the carport slab. It also awarded the Newtons attorney’s fees in the amount of $84,398.50. Thereafter, the Newtons filed a motion to modify judgment (seeking an increase in attorney’s fees), tax costs and assess judicial interest. On June 26, 2013, the trial court granted the motion and increased attorney’s fees to $42,182.50, taxed costs in the amount of $4,099.44, and awarded judicial interest. The Dongieux-es appeal the | (judgment finding them liable for redhibition and the amount awarded for attorney’s fees.

ISSUES

The Dongieuxes raise three issues on appeal: (1) the trial court erred in finding the property contained a redhibitory defect; (2) the trial court erred in determining the Dongieuxes were manufacturers of the property so as to apply a presumption of knowledge of any defects for purposes of redhibition; and (3) the trial court erred in awarding attorney’s fees because the Dongieuxes were not bad faith sellers, or alternatively the amount of attorney’s fees awarded was excessive.

DISCUSSION

Redhibition

The Dongieuxes argue that the trial court erred in finding the property’s propensity to flood was a hidden defect for purposes of redhibition because they disclosed the flooding problem to the Newtons prior to the sale of the home. As such, the Dongieuxes contend that the Newtons were on notice of the flooding issue and had an obligation to further investigate. Additionally, the Dongieuxes maintain the elevation of the backyard and pool was open and obvious, not hidden; thus, it could not be a redhibitory defect.

The Dongieuxes also argue that they were not manufacturers of their home and, thus, the presumption of knowledge under La. C.C. art. 2545 does not apply. They maintain they hired a contractor, a construction company, an architect and a pool company to design and construct the home and pool. The Dongieuxes further contend they do not have any specialized construction knowledge that would allow the presumption to apply. The Dongieuxes contend the trial court erred in relying on a pre-trial stipulation that they were general contractors when the trial evidence was clearly to the contrary. They further assert that neither party relied on the |7stipulation and both parties, without objection, elicited testimony showing the Dongieuxes were not the general contractors of the home.

In its reasons for judgment, the trial court determined the Dongieuxes were manufacturers of the home based on the parties’ pre-trial stipulation in their joint pre-trial order that the Dongieuxes served as the general contractors for the construction of the property. After making this determination, the trial court found the Dongieuxes were presumed to know of any defect in the property under La. C.C. art. 2545. The trial court then determined the Newtons’ waiver of redhibition was void because a manufacturer who is presumed to know of the defects in the thing he sells can never be in good faith if a defect exists. Thereafter, the trial court found the flooding defect in the yard and carport existed at the time of the act of sale and, therefore, the Dongieuxes were liable in redhibition.

A trial court’s factual findings will not be upset unless they are manifestly erroneous or clearly wrong. Dumser v. Kardon, 13-557 (La.App. 5 Cir. 12/12/13); 131 So.3d 277, 280. In order to reverse a factfinder’s determinations, an appellate court must find a reasonable factual basis does not exist for the factual finding and that the record shows the factual finding is clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993). The issue is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was reasonable in light of the record. Id. If an appellate court finds manifest error, it is required to determine the facts de novo from the entire record and render a judgment on the merits. Rosell v. ESCO, 549 So.2d 840, 844, n. 2 (La.1989).

We find the trial court was manifestly erroneous in finding the Dongieuxes were manufacturers of the home for purposes of La. C.C. art. 2545. Article 2545 |sprovides that “[a] seller is deemed to know that the thing he sells has a redhibitory defect when he is a manufacturer of that thing.”

In the parties’ joint pre-trial order, under the heading “Pretrial Stipulations,” the parties stated: “Defendants served as the general contractors for the construction of the Garden Road home, which was built in or around 2000.” The trial court concluded that being a general contractor was equivalent to being a manufacturer of the home for purposes of Article 2545. The facts of this case do not reasonably support the trial court’s conclusion.

In Dumser v. Kardon, supra, this Court found that the sellers were not manufacturers of the home for purposes of Article 2545 even though the seller admitted “building” the house. The record showed that the sellers hired a builder to build their home and that the builder hired subcontractors and oversaw the construction. Additionally, the plans and specifications were prepared by an architect. This Court concluded that although the seller testified he acted as his own general contractor, the facts were insufficient to show he was the manufacturer of the home.

Additionally, in Lee v. Kendrick, 532 So.2d 335 (La.App. 3rd Cir.1988), the court determined that the seller did not manufacture the camp despite claims by the buyer that the seller acted as the general contractor for the construction of the camp. The court found no evidence that the seller had any knowledge of engineering or construction. Additionally, the seller found the plans for the camp in a magazine. Although the seller modified the plans, he submitted them to a professional for finalization. The seller hired workers to lay the foundation, build the frame and lay the bricks, but did not supervise the workers. The court ultimately concluded that the sellers did not effectively act as a general contractor and, thus, were not imputed with knowledge of any defects.

|;)The mere label of “general contractor” is not equivalent to “manufacturer” under Article 2545. However, if a vendor-builder has any type of engineering or construction knowledge or is in the business of building or developing homes for sale, it is more likely that he will be considered a manufacturer. (See Pickron v. Krebs, 441 So.2d 272, 274 (La.App. 5th Cir.1983), writ denied, 442 So.2d 481 (La.1983), where this Court held that “a person with engineering and construction knowledge who plans, designs and personally supervises the building of an addition to a residence is presumed to be aware of any structural defect, and the lack of knowledge regarding any structural defect is imputed to him”)

In the instant case, there is nothing in the record to support a finding that the Dongieuxes were manufacturers of the house. Dr. Dongieux has been an orthodontist for 44 years and Ms. Dongieux owns a T-shirt company, with previous employment in sales and interior design. The Dongieuxes hired an architect and a construction company, C & G Construction, to build the home. The contractor and subcontractors were overseen by Dr. Dongieux’s son, Glenn, who owns several construction companies. The record is completely devoid of any facts to show that the Dongieuxes possessed the requisite construction knowledge to effectively act as general contractors in the building of their home so as to be manufacturers of their home for purposes of Article 2545. Thus, we find the trial court was manifestly erroneous in finding the Dongieuxes to be manufacturers of the house.

We further find the trial court erred in finding that the backyard flooding was a redhibitory defect. While a property’s susceptibility to flooding can be a redhibi-tory defect based on certain facts and circumstances, the facts show it is not | mredhibitory in this case because the defect was known to the Newtons at the time they purchased the property.

A seller warrants the buyer against red-hibitory defects in the' thing sold. La. C.C. art. 2520. A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect, or else of such diminished usefulness and value that the buyer would only have purchased the thing for a lesser price. Id.

A seller owes no warranty for defects that were known to the buyer at the time of the sale or that should have been discovered by a reasonably prudent buyer. La. C.C. art. 2521. A buyer is under a duty to make an inspection that is reasonable in light of all the circumstances surrounding the sale. Ollis v. Miller, 39,087 (La.App. 2 Cir. 10/29/04); 886 So.2d 1199, 1203.

In Nicholson v. Ellerbe, 434 So.2d 1146, 1148 (La.App. 1st Cir.1983), the court found that the property’s susceptibility to flooding was not a redhibitory defect when the party negotiating the sale on behalf of the buyer had been informed by the seller that the property was prone to flooding. The court further concluded that the tendency of the property to flood was not only known to the buyer, but also was discoverable by simple inspection; thus, it was not a redhibitory defect under La. C.C. art. 2521.

In the present case, the record shows that the Dongieuxes disclosed the backyard flooding issue to the Newtons. Specifically, the property disclosure form asked, “Has any flooding, water intrusion, accumulation, or drainage problem been experienced with respect to the land?” and the Dongieuxes answered yes. In further explanation, the Dongieuxes noted on the form that “during a very hard rain, the backyard ponds water. Drains quickly.” This disclosure, signed by all parties in February 2007, put the Newtons on notice of a problem. Despite Inknowing of the problem, the Newtons purchased the property and waived redhibition.

The Newtons claim the Dongieuxes misrepresented the extent of the flooding issue and, thus, they never had full knowledge of the problem. The Newtons assert Ms. Dongieux’s comment about being able to soak up the water with a beach towel misled them into thinking there was no real flooding issue.

We find that once the Dongieuxes disclosed the fact that the property had experienced flooding/water intrusion/accumulation/drainage problems, it was incumbent upon the Newtons, as purchasers, to act as reasonably prudent buyers and to further investigate the flooding issue. At the time the Newtons signed the property disclosure form, they were aware of a potential flooding defect and had not sought further explanation from the Dongieuxes. While the Newtons subsequently sought explanation from the Dongieuxes, it is unclear whether this was done before or after the Newtons had the property inspected. Nonetheless, the Newtons testified that they did not seek a specific inspection regarding the flooding issue or elevation of the property despite knowing of a potential flooding defect.

We find the Newtons could not have reasonably relied on Ms. Dongieux’s statement as a reason not to further investigate. When taken in context, Ms. Don-gieux’s statement that she could soak up the puddle with a beach towel was an example of what remained after the water drained after a heavy rain. She made no statement about the amount of water that ponded during the heavy rain. Further, the waiver of redhibition signed by the Newtons at the time they executed the agreement to purchase, specifically stated:

Purchaser acknowledges and declares that neither the Seller nor any party, whomsoever, acting or purporting to act in any capacity whatsoever on behalf of the Seller has made any direct, indirect, 112explicit, or implicit statement, representation or declaration, whether by written or oral statement or otherwise, and upon which the Purchaser has relied, concerning the existence or nonexistence of any quality, characteristic or condition of the property herein conveyed. Purchaser has had full, complete and unlimited access to the property herein conveyed for all tests and inspections which Purchaser, in Purchaser’s sole discretion, deems sufficiently diligent for the protection of Purchaser’s interests.

The waiver stated that it would be made a part of and would not become effective until the act of sale. Thus, at the time of the act of sale, the Newtons expressly stated that they had not relied on any written or oral statements made by the Dongieuxes regarding any quality, characteristic or condition of the property.

Based on these circumstances, we do not find the Newtons acted as reasonably prudent buyers in failing to further investigate a potential flooding defect in the backyard when the sellers disclosed in the property disclosure form that water ponds in the backyard during a heavy rain.

As for the flooding of the carport, the record shows that it was a redhibitory defect that was not disclosed by the Don-gieuxes. In particular, question 12 of “Section 3: Structure” of the property disclosure form asked, “Has any structure on the property ever taken water by flooding (rising water or otherwise)?” to which the Dongieuxes answered no. To the contrary, the evidence presented at trial clearly showed flooding of the carport behind the cabana, located at the rear of the property, with several inches of water on top of the slab and against the foundation and two sets of stairs leading to the cabana and to the apartment above the cabana.

A purchaser is entitled to the warranty against redhibitory defects, unless expressly waived. To be effective, a waiver of warranty against redhibitory defects must meet three requirements: (1) be written in clear and unambiguous terms; (2) be contained in the contract; and (3) either brought to the attention of the buyer or explained to him. Jeffers v. Thorpe, 95-1731 (La.App. 4 Cir. 1/19/96); 673 So.2d 202, 205, writ denied, 96-1721 (La.10/4/96); 679 So.2d 1390. The Newtons never challenged the existence of a valid redhibition waiver, but rather maintained the waiver was void because the Dongieuxes failed to disclose the defect.

The Newtons can only obtain relief from the redhibition waiver if they can show fraud in the inducement of the contract. See Shelton v. Standard/700 Associates, 01-587 (La.10/16/01); 798 So.2d 60, 64. A warranty against redhibitory defects is not effective if the seller commits fraud, as defined in the civil code, upon the buyer. Id.

A contract is formed by the consent of the parties. La. C.C. art. 1927. However, consent may be vitiated by fraud. La. C.C. art. 1948. “Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other.” La. C.C. art. 1953. “Fraud does not vitiate consent when the party against whom the fraud was directed could have ascertained the truth without difficulty, inconvenience, or special skill.” La. C.C. art. 1954.

There are three elements for fraud against a party to a contract: (1) a misrepresentation, suppression, or omission of true information; (2) the intent to obtain an unjust advantage or to cause damage or inconvenience to another; and (3) the error induced by the fraudulent act must relate to a circumstance substantially influencing the victim’s consent to the contract. Shelton, supra.

In this case, we cannot say the Dongieuxes committed fraud when they failed to disclose the flooding of the carport. Specifically, the record does not support a finding that the Dongieuxes intended to obtain an unjust advantage over the Newtons or to cause damage or inconvenience to the Newtons. • First, the Don-gieuxes were not trying to sell their house when they were approached by the Newtons, who expressed an interest in buying the house. Ms. Dongieux testified |14that when Mrs. Newton approached her about buying the house, she did not want to sell. Dr. Dongieux also testified that Ms. Don-gieux did not want to sell the house. Second, there were no negotiations regarding the purchase price. Dr. Dongieux stated that his wife asked him to give the Newtons a “ridiculous price just to get [Mrs. Newton] off my back.” He told the Newtons he would sell the house for $1.4 million and they accepted without any negotiation. Mr. Newton testified that when Dr. Dongieux called and said he wanted $1.4 million, they said okay. Third, the Don-gieuxes did disclose flooding issues in the backyard, where the carport was located. We do not find these facts sufficiently demonstrate that the Dongieuxes intended to defraud the Newtons.

Based on the total circumstances surrounding the purchase of this property, we cannot say the Dongieuxes committed fraud by failing to disclose the carport flooding. Although the flooding of the carport was a redhibitory defect, the Newtons executed a valid waiver of the warranty of redhibition. Thus, they are not entitled to damages for any redhibitory defect.

DECREE

Based on the foregoing, we reverse the trial court’s judgment in favor of Plaintiffs, William and Elaine Newton, against Defendants, Gene Dongieux, Sr. and Rhonda Dongieux, relating to Plaintiffs’ redhibition claims and award of attorney’s fees. The Plaintiffs are to bear the costs of this appeal.

REVERSED.

WICKER, J.,

dissents with reasons.

| ^Because I would affirm the judgment of the trial court, I respectfully dissent.

I agree with the majority that the trial court erred when it found that the Don-gieuxs were the manufacturers of the home for purposes of La. C.C. art. 2545, and that the Dongieuxs were, therefore, deemed to know that the house they sold had a redhibitory defect. Being the general contractor in the construction of the home is not necessarily equivalent to being the manufacturer for purposes of La. C.C. art. 2545. Dumser v. Kardon, 13-557 (La. 5 Cir. 12/12/13). Under the facts of this case, where the Dongieuxs hired a contractor, a construction company, an architect, and a pool company to design and construct the home and the pool, and where the Dongieuxs had no specialized construction knowledge, they were not the manufacturers, although they were the general contractor. Therefore, the Dongieuxs are not deemed to know that the home contained two redhibitory defects — the backyard flooding in the pool area and the carport flooding.

I, however, disagree with the majority’s finding that the property did not suffer from a redhibitory defect because the Newtons knew of the defect when they purchased the property. After a de novo review of the trial record, I am of the opinion that the property suffered from two redhibitory defects which were not open and obvious and that the Newtons did not fail to make a reasonable | inspection of the property. Further, while the parties to this sale executed waivers of redhibitory rights and the sale was “as is”, it is my opinion that the waivers were invalidated because the Don-gieuxs concealed the fact that the property flooded (rather than the “ponding with quick drainage” as described by the Don-gieuxs), and that during such floods, dirt washed from the lawn onto the pool’s deck and into the pool. I am also of the opinion that the Dongieuxs failed to disclose the fact that the carport flooded and that, therefore, the stairs to the second floor apartment were rotted. “... A buyer is not bound by an otherwise effective exclusion or limitation of the warranty when the seller has declared that the thing has a quality that he knew it did not have.... ” La. C.C. art. 2548.

In the February 5, 2007 property disclosure form, the Dongieuxs responded “Yes” to question number four under “Section 1: Land,” which asked, “Has any flooding, water intrusion, accumulation, or drainage problem been experienced with respect to the Land?” The Dongieuxs stated on the form, “during a very hard rain,- the backyard ponds water. Drains quickly.” The Dongieuxs responded “no” to “Section 3: Structure” question 3, which asked, “Has any structure on the property ever taken water by flooding (rising water or otherwise)?” After the property disclosure form was executed and before the act of sale was consummated, Mrs. Newton asked Ms. Dongieux about the “ponding” problem. In response, Mrs. Dongieux told Mrs. Newton and their real estate agent, Bonnie Schultz, that after a hard rain a “little puddle forms where the sidewalks meet”. Mrs. Dongieux elaborated that, “Well, once I was having a party, and it rained, and I got that little puddle/pond, and I took a beach towel and wiped up.” Neither Dr. nor Mrs. Dongieux ever mentioned the pool’s deck or the carport as a place where flooding occurred. Furthermore, the Dongieuxs never mentioned that a sump pump was installed behind bushes to assist with the flooding and drainage issue.

| sMr. Newton testified that, based upon Mrs. Dongieux’s explanation of the only disclosed defect, he did not make any further investigation into that disclosure. He did, however, have the home and pool inspected. Neither the pool inspection report nor the home inspection report indicated that the inspectors observed the flooding later revealed on both the video and photos taken by the Newtons. Based upon the evidence, it is my opinion that the Newtons discharged their duty to inspect when they queried Mrs. Dongieux about the yard flooding and she dissembled as noted above, after which they retained inspectors with instructions consistent with the information Mrs. Dongieux had provided to them. While the majority deems the Newtons to have known of the defects, causing them not to be redhibitory, I respectfully disagree.

In his Reasons for Judgment, the trial court found in part:

... On February 5, 2007, the Don-gieuxs signed a property disclosure revealing that “[djuring a very hard rain, the backyard ponds water. Drains quickly”. Ms. Newton testified that she asked Ms. Dongieux to further expláin what they meant by this disclosure and Ms. Dongieux told her that on one occasion they had a heavy rain prior to a party that caused some flooding in the backyard. Ms. Dongieux explained that she was able to mop up the excess water with a beach towel rather than waiting for it to drain. The parties then entered into an Agreement to Purchase on February 15[sic] 2007, and the Newtons completed inspections of the Property and pool on February 21, 2007....
With respect to the redhibition claims, the Newtons allege that the Property was defective at the time of purchase because the swimming pool was lower than the surrounding yard and landscaping. The Newtons also allege that the Dongieuxs did not have adequate drainage for the Property and also failed to disclose that the carport flooded due to an unlevel slab. Video evidence introduced by the Newtons demonstrated an excessive amount of water flooding the pool and entire surrounding area following a hard rain. Though the Dongieuxs denied ever experiencing this type of flooding during the time they owned the Property, the Newtons contend that this occurred on several occasions after they purchased the Property and caused dirt and debris to flow into the pool each time. The Newtons also introduced photos showing the water that became trapped in the rear carport area due to the unlevel slab.
|4... With respect to the flooding in the rear carport area, the Newtons introduced photographs of the flooding. They also presented pictures of the bottom of the stairs that had started to rot due to the water that became trapped in the rear carport area. Finally, the Newtons testified that after they had concrete added to level the carport slab, the flooding stopped. Based on the foregoing, the Court finds that this defect existed in the carport area prior to the sale of the Property.
With respect to the flooding in the pool area, William O’Berry, Jr. of Southern Style Swimming Pool Services testified that the pool flooded because the pool is lower than the yard and landscaping. Isaías Toscano, the contractor who elevated the pool, also testified that the pool flooded because it was 9" lower than the yard. Both of these witnesses testified that they saw no evidence of sinking or shifting, and therefore the elevation problem had to date back to the time of the original construction of the pool area. Furthermore, the real estate agent, Bonnie Schulz [sic], testified that she witnessed the flooding in the pool area the day that she delivered the keys to the Newtons. In addition, following the act of sale, the Newtons found a sump pump behind shrubs that could be used to remove water from the backyard area. Therefore, the Court finds that the preponderance of the evidence demonstrates that the flooding of the yard into the pool area existed prior to the act of sale.

Upon de novo review, I am of the opinion that the district court, though in error on the issue of the Dongieuxs’ manufacturer status, had sufficient evidence to reasonably conclude that the Dongieuxs had actual knowledge of the two flooding defects when they sold the property to the Newtons. Evidence established that the Dongieuxs had installed additional drainage in their “backyard” to relieve flooding after the initial phase of construction of the property. Furthermore, the trial court may have reasonably inferred from the defendants’ installation of a sump pump by the carport that the defendants knew that the property had a problem with flooding that exceeded the “ponding” as described by Mrs. Dongieux.

Therefore, it is my opinion that the Don-gieuxs’ failure to disclose the flooding of the property’s pool’s deck and carport, and Mrs. Dongieux’s explanation minimizing the extent of the disclosed backyard flooding, voided the waivers of redhibitory rights executed by the Newtons.

1 ¿For the foregoing reasons, I strongly feel that the Newtons are clearly entitled to the relief granted by the trial court. Accordingly, I would affirm the judgment of the trial court in favor of the Newtons and against the Dongieuxs.

GRAVOIS, J., dissents for the reasons assigned by WICKER, J.

      . At the time of trial, the Dongieuxes had divorced and Rhonda Dongieux’s name had changed to Rhonda Lorio. For ease of party identification, we will refer to Rhonda throughout this appeal as Ms. Dongieux.

      . The trial court denied Plaintiffs’ claim for breach of contract. Plaintiffs did not answer this appeal; thus, the breach of contract claim is not before us on appeal. :

      . See McCarthy v. E & L Development, Inc., 45,683 (La.App. 2 Cir. 11/10/10); 54 So.3d 1143, 1148.


author: JUDE G. GRAVOIS, Judge.

text:
    JEFFERSON FINANCIAL CREDIT UNION v. Carmiel I. WILLIAMS.
    No. 13-CA-852.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 24, 2014.

      Robert A. Contreras, John H. Thomas, Jr., Ronald J. Vega, Attorneys at Law, Kenner, Louisiana, for Plaintiff/Appellee.
    Carmiel Williams, In Proper Person, New Orleans, Louisiana, Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and ROBERT M. MURPHY.
   JUDE G. GRAVOIS, Judge.

| gDefendant, Carmiel Williams, appeals a July 19, 2013 trial court ruling which ordered him to produce mortgaged property — a Honda Ridgeline pickup truck — to plaintiff, Jefferson Financial Credit Union (“the Credit Union”), pursuant to a writ of seizure and sale that was issued on March 19, 2012. For the reasons that follow, we dismiss this appeal.

FACTS AND PROCEDURAL HISTORY

The record reflects that on February 15, 2012, the Credit Union filed a “Petition to Enforce Security Interest by Executory Process,” with attachments, alleging therein that it held a promissory note executed by defendant secured by a security agreement on defendant’s Honda Ridge-line pickup truck. The petition also alleged that defendant was in default on the payments due on the promissory note, thereby maturing the entire principal balance thereof ($8,239.82). The petition prayed for the issuance of a writ of seizure and sale directed to any sheriff to seize and sell the vehicle to satisfy defendant’s said indebtedness.

lsThe trial court signed an order on February 23, 2012, directing that “executory process issue herein as prayed for, and according to [flaw.” The record reflects that the writ of seizure and sale was issued on March 9, 2012, and on March 19, 2012, the Jefferson Parish Sheriffs Office prepared a notice of seizure and sale of the subject truck, but the writ of seizure and sale was never executed because the truck could not be located. On February 26, 2013, the Credit Union filed a “Motion and Order to Produce Mortgaged Property,” seeking to rule defendant into court to produce the truck for seizure, asking alternatively that he be held in contempt of court. Initial attempts to serve defendant with the motion and order were unsuccessful. The trial court set the matter for a hearing on July 19, 2013. On June 17, 2013, defendant was located and personally served by a private process server with the motion and order to produce the mortgaged property.

On July 11, 2013, defendant filed a “Motion to Transfer,” requesting that this matter be transferred to Division B of the 24th Judicial District Court, where, he alleged, he had filed suit against the Credit Union on September 23, 2011, requesting injunc-tive relief because, he alleged, the Credit Union had refused to accept his car payments.

When the matter came up for a hearing on July 19, 2013, defendant asked the trial court to grant the motion to transfer this suit to Division B where his suit against the Credit Union was pending. He also noted that he had filed a motion to consolidate the two actions in the other suit pending in Division B. Counsel for the Credit Union stated that they were unaware of the other lawsuit.

The trial court informed defendant about the issuance of the writ of seizure and sale and ordered defendant to turn the vehicle over or face a sentence of time |4in jail for contempt of court. Defendant argued that he could not produce the property because of the lawsuit pending in the other division, indicating also that he had in fact been paying the car note. The trial judge disagreed that the other suit prevented her from ruling on the motion before her. The trial judge noted that the writ had already been issued, entitling the Credit Union to have the vehicle seized. Defendant was ordered to clean out his truck and deliver it to the Credit Union later that day.

Defendant filed a “Motion for Appeal” on August 7, 2013, which was granted the next day. On appeal, he argues that the trial court erred in not dismissing this action on the grounds that defendant was not given notice as required in executory proceedings and was not served with the amended petition as required by statute. Second, defendant argues that the trial court erred in not dismissing the action even though the Credit Union alleged there was another case pending that involved the same transaction or occurrence and the same parties in the same capacities.

ANALYSIS

Upon review, for the following reasons, we pretermit discussion of defendant’s assignments of error. Louisiana Code of Civil Procedure article 2642 specifies that “defenses and procedural objections to an executory proceeding may be asserted either through an injunction proceeding to arrest the seizure and sale as provided in Articles 2751 through 2754, or a suspen-sive appeal from the order directing the issuance of the writ of seizure and sale, or both.” Article 2642 further Estates that “a suspensive appeal from an order directing the issuance of a writ of seizure and sale shall be taken within fifteen days of the signing of the order.”

As the court stated in Citizens Bank & Trust Co. v. Carr, 498 So.2d 217 (La.App. 1 Cir.1986), at 218:

Article 2642 is clear; defendant had 15 days from the signing of the order [directing the seizure and sale of the mortgaged property] to take a suspensive appeal. First Federal Savings & Loan Association of Opelousas v. Manuel, 479 So.2d 379 (La.App. 3rd Cir.1985). See also Zulu v. Washington, 487 So.2d 1248 (La.App. 1st Cir.1986). Once that delay has run, the Code of Civil Procedure provides alternative remedies, including an injunction to arrest the seizure and sale as provided in La.Code Civ. P. art. 2751.

(Emphasis in original; footnote omitted.)

Defendant did not appeal, suspensively or otherwise, the order of February 23, 2012 that ordered the writ of seizure and sale to be issued. Nor did defendant file a petition for injunctive relief from the trial court’s order of July 19, 2013 to surrender the vehicle to the Credit Union pursuant to its motion to produce the mortgaged property. He filed a devolutive appeal on August 7, 2013, which, under Article 2642 as interpreted by Citizens Bank & Trust Co. v. Carr, as noted above, is an improper procedural vehicle to arrest the seizure and sale of the vehicle. Accordingly, we are compelled to dismiss this appeal.

CONCLUSION

For the foregoing reasons, this appeal is dismissed.

APPEAL DISMISSED.

      . The attachments to the petition included the title to the track, the security agreement, and the credit agreement, with addendum.

      . That suit, No. 706-138, entitled "Williams v. Jefferson Financial Credit Union, et al, in Division "B” of the 24th Judicial District Court, was dismissed pursuant to the Credit Union's declinatory exception of insufficient service and citation. That judgment is currently under appeal in this Court. "Williams v. Jefferson Financial Credit Union, et al, 13-1005.

      . The codal articles pertaining to writs of seizure and sale do not provide for an expiration date, unlike the articles that apply to writs of fieri facias. Turner v. Associates Commercial Corp., 03-0224 (La.App. 5 Cir. 10/28/03), 860 So.2d 244.

      . The transcript as a whole indicates that the trial judge intended to deny the motion to transfer, though no specific ruling was made.

      . The Credit Union indicates in its appellate brief that defendant complied with the court's order to deliver the truck to the Credit Union.

      . This record is devoid of information relative to whether the sale of the vehicle has already taken place.

      . Comment (c) to Article 2642 makes clear that devolutive appeals are not permitted from an order directing the issuance of a writ of seizure and sale because of the likelihood of the mortgaged property being sold prior to the time of the hearing of the appeal, thus rendering the appeal moot.


author: STEPHEN J. WINDHORST, Judge.

text:
    Carmiel WILLIAMS v. JEFFERSON PARISH CREDIT UNION and Ted Roose.
    No. 13-CA-1005.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 24, 2014.

      Carmiel Williams, New Orleans, Louisiana, Appellant/In Proper Person.
    Robert A. Contreras, Ronald J. Vega, John H. Thomas, Jr., Attorneys at Law, Kenner, Louisiana, for Defendants/Appel-lees.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON and STEPHEN J. WINDHORST.
   STEPHEN J. WINDHORST, Judge.

| {.Appellant, Carmiel Williams, appeals the trial court’s September 30, 2013 judgment sustaining appellees’ exceptions of insufficiency of service of process and nonconformity of the petition and. dismissing appellant’s claims. For the reasons that follow, we affirm.

Facts and Procedural History

On September 13, 2011, Mr. Williams filed a pro se “Complaint For Injunction.” The caption of the petition (although called a complaint by the plaintiff) names “Jefferson Parish Credit Union and Ted Roose” as defendants. However, in the petition, “Jefferson Financial Credit Union” is named as the defendant. The petition does not specifically list Ted Roose as a defendant. Mr. Williams alleged that from August 27, 2011 through the present, “defendants” refused to accept automobile payments; attempted to charge a $250 repossession fee; and threatened to take his automobile unless the added charges were paid. Mr. Williams claimed that he demanded that the defendants stop their wrongful conduct, but that defendants have refused to comply. Mr. Williams further | .^contended that unless defendants were enjoined and restrained, he would suffer irreparable injury.

In his prayer, Mr. Williams prayed for judgment against defendant “Jefferson Parish Credit Union” in the form of a temporary restraining order, preliminary injunction, and a permanent injunction. The petition did not contain a proposed temporary restraining order, or a rule to show cause setting the preliminary injunction for hearing. Service of the petition was requested on:

Law Office Robert Contrariss,
3321 Florida Ave
Kenner, Louisiana 70065
Attorney for Defendants
Jefferson Financial Credit Union

Robert Contrariss was not enrolled as counsel of record, nor was there any allegation or indication that he was the agent for service. At the hearing, counsel for the Credit Union stated that the registered agent was its C.E.O., Mark Rosa.

On July 12, 2013, Mr. Williams filed a “Motion for Consolidation,” requesting consolidation of the present case with a “Petition for Executory Process” filed by Jefferson Parish Credit Union against Mr. Williams in case no. 711-436, Division K, in the 24th Judicial District Court on February 15, 2012. The motion requested service on:

Jefferson Parish Credit Union
D’Aquilla, Mullins & Contreras
3329 Florida Avenue
Kenner, Louisiana 70065

This law firm was not yet enrolled as counsel of record, nor is there any allegation or indication that the firm or anyone therein was the Credit Union’s agent for service. The motion to consolidate was set for hearing, and the trial court denied the motion in open court on August 21, 2013.

|4On August 20, 2013, Jefferson Financial Credit Union and Ted Roose filed exceptions of insufficiency of service of process and nonconformity of the petition. The exceptors contended that Jefferson Financial Credit Union was not correctly named in the petition and the motion for consolidation. Exceptors further argued that Mr. Williams failed to request service on Jefferson Financial Credit Union through its agent for service of process, and failed to request service on Ted Roose within 90 days of filing the petition.

On September 6, 2013, Mr. Williams filed a motion to amend his petition. The amended petition attached to the motion was not signed by Mr. Williams nor did it request service on the defendants. The trial court denied the motion to amend on September 12, 2013.

On September 18, 2013, the trial court granted both exceptions and dismissed Mr. Williams’ claims. This appeal followed.

Discussion

In his first assignment of error, Mr. Williams contends that the trial court erred in denying his motion to consolidate after finding that the present case and the case in Division K require two different types of proceedings.

La. C.C.P. art. 1561 provides in pertinent part that “When two or more separate actions are pending in the same court, the section or division of the court in which the first filed action is pending may order consolidation of the action for trial after a contradictory hearing, and upon a finding that common issues of fact and law predominate.” A trial court has wide latitude with regard to the consolidation of suits pending in the same court. Francois v. Gibeault, 10-0180 (La.App. 4 Cir. 8/25/10), 47 So.3d 998, 1002. Because the trial court’s power to consolidate pursuant to La. C.C.P. art. 1561 is discretionary, its decision is reviewed under an abuse of discretion standard. Id.

15The record does not contain a written judgment denying Mr. Williams’ motion to consolidate. However, the minute entry and transcript show that the trial court denied his motion. During the hearing on the motion to consolidate, Mr. Williams conceded that the case in Division K was resolved and is currently on appeal. Transfer is allowed under the provisions of La. C.C.P. art. 253.2 only for the purpose of consolidating the case with another pending case, as allowed by La. C.C.P. art. 1561. See In re Dendinger, 99-1624 (La.App. 4 Cir. 7/21/99), 766 So.2d 554, 556. The record reveals that the case in Division K was no longer pending and therefore, the cases could not be consolidated. Accordingly, we find that the trial court did not abuse its discretion in denying the motion to consolidate.

In his next two assignments of error, Mr. Williams contends that the trial court erred in denying his injunction on the grounds that he did not submit a proposed temporary restraining order, or provide a rule to show cause setting a preliminary injunction for hearing, and thus holding him to the same standard as an attorney.

The exceptions of insufficiency of service of process and nonconformity of the petition were heard on September 18, 2013. Mr. Williams did not file an opposition to the exceptions, nor did he present evidence at the hearing to show “good cause” why service could not be requested on the defendants. The trial court granted both motions and dismissed Mr. Williams’ case.

|(“Notwithstanding that a layman representing himself is not to be held to the same standards as an attorney, he nonetheless assumes responsibility for his own lack of knowledge of both procedural and substantive law.” See Boyd v. Picayune, 11-119 (La.App. 5 Cir. 11/15/11), 82 So.3d 298, 301. The record establishes that the trial court did not deny Mr. Williams’ petition for injunction because he failed to file an order setting the injunction for hearing. The trial court dismissed Mr. Williams’ case on exceptions filed by the defendants after a contradictory hearing. Thus, even if Mr. Williams’ injunction had been set for hearing or trial, Mr. Williams was required to request proper service on the defendants. Mr. Williams failed to request proper service and did not show “good cause” why service could not be requested. Thus, these arguments are without merit.

In his final assignment of error, Mr. Williams further contends the trial court erred in denying his motion to amend. The motion to amend was filed after defendants filed the above exceptions. Furthermore, we conclude that Mr. Williams’ amended petition did not remove the defects in the original petition to which the exceptions were addressed, and thus the trial court was not bound to allow the amendment. See McCoy v. Stalder, 99-1747 (La.App. 1 Cir. 9/22/00), 770 So.2d 447, 452. The amended petition failed to properly name all defendants and it did not request service of the amended petition on the defendants.

Additionally, La. C.C.P. art. 863 provides, in pertinent part:

A. Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading and state his address.
C. If a pleading is not signed, it shall be stricken unless promptly signed after the omission is called to the attention of the pleader.

|7The trial court denied the motion to amend because the amended petition lacked Mr. Williams’ signature. Accordingly, this assignment of error is without merit.

Conclusion

For the above stated reasons, we affirm the trial court’s September 30, 2013 judgment.

AFFIRMED.

      . As the moving party, it is incumbent on appellant to obtain a hearing date by requesting service, checking the record or telephoning the court. State v. Williams, 97-1816 (La.App. 4 Cir. 3/11/98), 709 So.2d 326, 328. There is nothing in the Code of Civil Procedure that requires the court to notify the moving party of the date of a hearing unless requested by the mover to do so. Id.

      . La. C.C.P. art. 1201A provides that service and citation are essential in all civil proceedings and "[w]ithout them all proceedings are absolutely null.” La. C.C.P. art. 1201C requires that "service of the citation shall be requested on all named defendants within ninety days of commencement of the action.” La. C.C.P. art. 1672C provides that the suit shall be dismissed without prejudice upon the court sustaining the declinatory exception of insufficiency of service, “unless good cause is shown why service could not be requested.” See also La. C.C.P. art. 1232; La. C.C.P. art. 1234; and La. C.C.P. art. 1261.

      . Mr. Williams does not appeal or assign as error the trial court’s judgment sustaining the exception of insufficiency of service of process and exception of nonconformity of the petition. Accordingly, that judgment is not before us on appeal. See Uniform Rules of the Courts of Appeal, Rule 1-3.

      . Louisiana District Court Rule 9.8 requires that all motions shall be accompanied by a proposed order requesting that the motion be set for hearing. Mr. Williams did not attach a rule to show cause or order to set a preliminary injunction for hearing. Thus, there was nothing for the trial court to set or deny.


text:
    STATE of Louisiana v. Carlo MUTH.
    No. 13-KA-1003.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 24, 2014.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Anne M. Wallis, David B. Wheeler, Jennifer Z. Ro-senbach, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and ROBERT M. MURPHY.
   JUDE G. GRAVOIS, Judge.

| ¡¿Defendant, Carlo Muth, appeals his sentence for failing to comply with the registration requirements as a convicted sex offender. For the reasons that follow, we affirm defendant’s sentence and remand the matter to the trial court for correction of an error patent noted herein.

PROCEDURAL HISTORY

On March 28, 2013, the Jefferson Parish District Attorney filed a bill of information charging defendant, Carlo Muth, with failure to maintain his sex offender registration by failing to provide community notification, in violation of La. R.S. 15:542. On May 3, 2013, defendant was arraigned and entered a plea of not guilty to the charge. Following a trial by jury on September 17, 2013, twelve jurors unanimously found defendant guilty as charged. On September 26, 2013, after denying defendant’s motion for a new trial and in arrest of judgment, the trial court sentenced defendant to three years imprisonment at hard labor without the | ¡¡benefit of parole, probation, or suspension of sentence. Defendant’s motion to reconsider sentence was filed and denied that day. This timely appeal followed.

FACTS

On November 22, 2005, in the 25th Judicial District Court, Plaquemines Parish, defendant pled guilty to molestation of a juvenile in violation of La. R.S. 14:81.2. In conjunction with his guilty plea, defendant was fingerprinted and informed of the sex offender registration requirements.

Nearly seven years later, on October 17, 2012, in accordance with La. R.S. 15:542, defendant notified the Jefferson Parish Sheriffs Office of his intent to establish residency in Jefferson Parish. On that date, defendant completed a Jefferson Parish Sheriffs Office sex offender registration form and was fingerprinted. As provided in La. R.S. 15:542.1(2)(a), defendant was informed that he had twenty-one days to notify the community of his status as a convicted sex offender.

Defendant, a commercial diver, alleged that he was experiencing financial difficulties in November of 2012 and could not afford the required $628.75 community notification fee. He reported his financial situation to Lieutenant Luis Munguia of the Jefferson Parish Sheriffs Office who supervised the sex offender registry. Lt. Munguia granted defendant an extension until January 18, 2013 to comply with all registration requirements. However, defendant remained non-compliant as of that date. On January 22, 2018, Lt. Munguia obtained a warrant for defendant’s arrest. In March, defendant moved back to Plaquemines Parish and, while attempting to register with the Plaquemines Parish Sheriffs Office on March 18, 2013, was arrested pursuant to the Jefferson Parish warrant. Defendant acknowledged that he had received a paycheck on Thursday, March 14, 2013, but|4made no effort to pay his community notification fee prior to his arrest on Monday, March 18.

Deputy Dona Quintanilla, an expert in the field of latent print examination with the Jefferson Parish Sheriffs Office, compared the fingerprints obtained from defendant at trial in the instant matter with the fingerprints obtained from defendant in connection with his underlying conviction for molestation of a juvenile in Plaque-mines Parish and the fingerprints obtained from defendant during the process of his sex offender registration in Jefferson Parish. Deputy Quintanilla testified that these latter sets of fingerprints matched the fingerprints obtained from defendant at trial.

ASSIGNMENT OF ERROR

In his sole assignment of error, defendant argues that his sentence is unconstitutionally excessive. Specifically, he claims that the trial court failed to consider mitigating or aggravating factors as set forth in La.C.Cr.P. art. 894.1. Defendant maintains that his sentence is excessive in light of the fact that his non-compliance resulted from his inability to afford the registration fee rather than a deliberate evasion of his registration obligation.

The failure to file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, limits a defendant to a bare review of the sentence for unconstitutional excessiveness. State v. Gatewood, 12-281 (La.App. 5 Cir. 10/30/12), 103 So.3d 627, 639. Defendant filed a motion to reconsider sentence, in which he argued that his sentence was excessive on account of his limited criminal history, his employment, and his maintaining a residence. On appeal, defendant argues that his sentence is unconstitutionally excessive because the trial court did not adequately consider the criteria set forth in La.C.Cr.P. art. 894.1.

| .^Defendant did not raise this issue below; he raises it for the first time on appeal. Consequently, this issue is precluded from appellate review. See State v. Brooks, 00-953 (La.App. 5 Cir. 2/11/03), 841 So.2d 854, 858; State v. Wickem, 99-1261 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 967-68, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839; State v. Battie, 98-1296 (La.App. 5 Cir. 5/19/99), 735 So.2d 844, 855-56, unit denied, 750 So.2d 980 (La.1999). Nevertheless, even if defendant was not precluded from raising this issue on appeal, we note that the trial court’s failure to articulate every circumstance listed in La.C.Cr.P. art 894.1 will not require a remand for re-sentencing if there is an adequate factual basis for the sentence contained in the record. Brooks, 841 So.2d at 858.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1, 4. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lawson, 04-334 (La.App. 5 Cir. 9/28/04), 885 So.2d 618, 622.

A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. Indeed, the issue on appeal is not whether another sentence might have been more appropriate, but whether the trial court abused its discretion. State v. Dorsey, 07-67 (La.App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130. If the record supports the sentence imposed, the appellate court shall not set aside a sentence for excessiveness. State v. Pearson, 07-332 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656. In reviewing a trial court’s sentencing discretion, three factors are ^considered: (1) the nature of the crime; (2) the nature and background of the offender; and (3) the sentence imposed for similar crimes by the same court and other courts. Pearson, 975 So.2d at 656.

In the instant case, defendant was convicted of failing to provide community notifications, for which the penalty is a fine of not more than one thousand dollars and imprisonment at hard labor for not less than two nor more than ten years, without the benefit of parole, probation, or suspension of sentence. See La. R.S. 15:542.1.4(A)(1). Defendant was sentenced to three years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. Although defendant’s sentence is within statutory limits, it is nonetheless subject to review for unconstitutional excessiveness. Smith, 839 So.2d at 4.

Turning to the first of the factors considered in reviewing a trial court’s sentencing discretion, the nature of the crime, defendant was convicted of failing to comply with his sex offender registration requirements, namely, he neglected to notify the community of his status as a convicted sex offender. In considering the nature of this crime, the purpose of the law offers some insight. In State ex rel. Olivieri v. State, 00-0172 (La.2/21/01), 779 So.2d 735, the Louisiana Supreme Court interpreted the legislative intent of La. R.S. 15:540, et seq. The Court stated:

A careful review of the subjective intent enunciated in La. R.S. 15:540 shows that the Legislature enacted this state’s Megan’s Laws with an avowedly non-punitive intent. It is clear that the laws were enacted to protect communities, aid police in their investigation of sex offenders, and enable quick apprehension of sex offenders. These enactments were further founded on the findings of the Legislature that this legislation was of paramount governmental interest because: (1) sex offenders pose a high risk of engaging in sex offenses, (2) sex offenders have a high incidence of recidivism, and (3) unless there was registration and community notification, sex offenders could remain hidden and thereby increase the risk to public safety. Accordingly, it is apparent that the intent of the Legislature was to alert the public for the purpose of public safety, a remedial intent, not to punish convicted sex offenders.

| ■jOlivieri, 779 So.2d at 747. Accordingly, it is apparent that defendant’s failure to notify the community of his status as a convicted sex offender served to increase the risk to public safety.

Next, considering the nature and background of the offender, the record reflects that defendant’s underlying criminal offense involved a felony conviction for the molestation of a juvenile. Defendant, as a 29-year-old, engaged in sexual conduct with a 14-year-old and pled guilty to molestation of a juvenile.

Lastly, considering the sentence imposed for similar crimes by the same court and other courts, our review reveals that the same underlying court (the 24th Judicial District Court) has imposed a five-year sentence at hard labor without benefits for the same offense. In State v. Mouton, 11-237 (La.App. 5 Cir. 11/15/11), 78 So.3d 245, 246, writ denied, 12-0443 (La.9/12/12), 98 So.3d 814, the defendant was convicted of failing to maintain his registration as a convicted sex offender and was sentenced under La. R.S. 15:542.1.4(A)(1) to five years at hard labor without the benefit of parole, probation, or suspension of sentence. He was not fined. On appeal, the defendant similarly argued that his sentence was excessive. This Court affirmed the sentence, noting that the prison term was less than midrange and was illegally lenient due to the omission of the mandatory fine, given that the defendant was a recidivist sex offender who had previously been convicted of several sex offenses. Mouton, 78 So.3d at 249.

In the instant case, although defendant has only one prior felony conviction and his instant conviction appears to stem from financial difficulty, we find that these mitigating factors are reflected in his sentence that is less than midrange and illegally lenient. Accordingly, we conclude that the trial court did not abuse its discretion in sentencing defendant to three years imprisonment at hard labor without benefits. This assignment of error is without merit.

| ^ERRORS PATENT REVIEW

The record was reviewed for errors patent in accordance with La.C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La.1975), and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We note the following.

First, as noted above, defendant received an illegally lenient sentence when the trial court failed to impose the fine mandated by La. R.S. 15:542.1.4(A)(1). However, in cases of indigent defendants, this Court frequently declines to correct an illegally lenient sentence based upon the omission of a mandatory fine. See Mouton, 78 So.3d at 249. This Court typically notes a defendant’s indigent status by virtue of his being represented by the Louisiana Appellate Project. Id. In the instant case, since defendant is represented on appeal by the Louisiana Appellate Project, we decline to correct this aspect of his sentence.

Second, our review of the trial transcript reveals that the trial court failed to inform defendant of the prescriptive period for seeking post-conviction relief as required by La.C.Cr.P. art. 930.8(C). We typically correct this error patent by way of our opinion. See State v. Austin, 12-629 (La.App. 5 Cir. 3/13/13), 113 So.3d 306, 318, writ denied, 13-0673 (La.10/25/13), 124 So.3d 1092; State v. Cammatte, 12-55 (La.App. 5 Cir. 9/11/12), 101 So.3d 978, 986, unit denied, 12-1370 (La.10/26/12), 99 So.3d 644, and unit denied, 12-2247 (La.4/5/13), 110 So.3d 1075. Accordingly, by this opinion, we advise defendant that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La.C.Cr.P. arts. 914 or 922.

Finally, we note that the State of Louisiana Uniform Commitment Order incorrectly reflects the adjudication date as September 26, 2013. The record indicates that defendant was convicted on September 17, 2013. In order to ensure Ran accurate record, we remand this matter for correction of the Uniform Commitment Order to reflect the correct adjudication date. See State v. Long, 12-184 (La.App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142. Further, we direct the Clerk of Court for the 24th Judicial District Court to transmit the original of the corrected Uniform Commitment Order to the officer in charge of the institution to which defendant has been sentenced and to the Department of Corrections’ Legal Department. Id. (citing La.C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846).

CONCLUSION

For the foregoing reasons, defendant’s conviction and sentence are affirmed and the matter is remanded to the trial court for correction of the Uniform Commitment Order.

AFFIRMED; REMANDED FOR CORRECTION OF COMMITMENT.


author: ROBERT M. MURPHY, Judge.

text:
    Steven and Nancy GONZALES v. OCHSNER CLINIC FOUNDATION.
    No. 14-CA-64.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 24, 2014.
    Blaine M. Hebert, Attorney At Law, Marrero, LA, for Plaintiff/Appellant.
    Harry E. Forst, Attorney At Law, New Orleans, LA, for Plaintiff/Appellant.
    David M. Stein, Don S. McKinney, Attorneys At Law, New Orleans, LA, for Defendant/Appellee.

      Panel composed of Judges SUSAN M. CHEHARDY, Jude G. GRAVOIS, and ROBERT M. MURPHY.
   ROBERT M. MURPHY, Judge.

12This medical malpractice matter involves allegations of delayed diagnosis and removal of a carcinoma. Plaintiffs, the patient Stephen Gonzales and his wife Nancy Gonzales, appeal the trial court’s July 19, 2013 judgment that granted a motion for summary judgment in favor of defendant, Ochsner Clinic Foundation. Unfortunately, the judgment appealed from was not signed by the judge who presided over the hearing. For the reasons that follow, we vacate the judgment on procedural grounds and remand for proceedings consistent with this opinion.

On June 7, 2012, Ochsner filed a motion for summary judgment contending that plaintiffs could not prevail without an expert. Plaintiffs opposed the motion with affidavits and depositions of plaintiffs and their two experts. On May 22, 2013, Honorable Judge Robert A. Pitre, Jr. heard the motion and issued written reasons on May 24, 2013. On May 31, 2013, the parties filed a joint stipulation as to the exhibits, “to be introduced into evidence as if they had been formally 1¡¡introduced at the May 22, 2013 hearing [before Judge Pitre] on defendant’s motion for summary judgment.”

On July 19, 2013, Honorable Judge pro tempore Marion F. Edwards signed the judgment granting Ochsner’s motion for summary judgment and dismissing plaintiffs’ claims with prejudice. There is no indication in the record as to why Judge Pitre did not sign the final judgment in this matter.

Plaintiffs have alleged several assignments of error that we are unable to consider because the judgment appealed from is null and void. Despite the considerable work of the trial court, the judge pro tempore, and the parties, the fact that the judgment was not signed by the judge who heard the case is fatal error. See Louisiana Paving Co., Inc. v. St. Charles Par. Public Schools, 593 So.2d 892 (La.App. 5 Cir.1992), writ denied, 605 So.2d 1370 (La.1992); Mullins v. Mississippi Valley Silica Co., Inc., 08-0330 (La.App. 4 Cir. 3/20/2008), 982 So.2d 209 (published writ disposition).

La. C.C.P. art. 1911 provides:

Except as otherwise provided by law, every final judgment shall be signed by the judge. For the purpose of an appeal as provided in Article 2083, no appeal may be taken from a final judgment until the requirement of this Article has been fulfilled.

Judge Pitre signed the reasons and was present at the hearing when the evidence was submitted retroactively. He did not, however, sign the judgment. Based on our holding in Louisiana Paving, supra, and La. C.C.P. art. 1911, we find the judgment at issue to be invalid. The judgment is therefore vacated and set aside.

For the reasons stated above, the trial court’s judgment of July 19, 2013 is vacated because of procedural error, and the matter is remanded to the trial court to enable Judge Robert Pitre, Jr., the trial judge, to render and sign a judgment. Each party is taxed its own costs on appeal.

|¿VACATED AND REMANDED.