author: STEWART, J.

text:
    ALPINE MEADOWS, L.C., Plaintiff-Appellant v. Peter Mark WINKLER and Sarah Cush Winkler, et al., Defendants-Appellants. Peter Mark Winkler and Sarah Winkler, Plaintiffs-Appellants v. Alpine Meadows, L.C., Garry Black and James T. Adams, Defendants-Appellants. Alpine Meadows, L.C., Plaintiff-Appellant v. Peter Mark Winkler, et al., Defendants-Appellees.
    Nos. 49,490-CA, 49,491-CA, 49,492-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 2014.
    Rehearing Denied Jan. 8, 2015.

      The Pesnell Law Firm, Shreveport, LA, by Billy R. Pesnell, J. Whitley Pesnell, W. Alan Pesnell, for Alpine Meadows, L.C. and Garry Black.
    Weiner, Weiss & Madison, Shreveport, LA, by M. Allyn Stroud, R. Joseph Naus, for Peter M. Winkler, Sarah C. Winkler and Meadowview Minerals, L.L.C.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell, Shreveport, LA, by Joseph S. Woodley, for James T. Adams.
    Jones Walker, by Michael B. Donald, for Chesapeake Louisiana, L.P. and Chesapeake Operating, Inc.
    Before STEWART, DREW and MOORE, JJ.
   STEWART, J.

11These consolidated matters involve the continuation of litigation between Alpine Meadows, L.C. (“Alpine Meadows”) and Peter Mark Winkler and Sarah Cush Winkler (“the Winklers”) stemming from the 2001 sale of a golf course in Caddo Parish. Alpine Meadows and the Winklers both appeal a trial court judgment rendered on October 4, 2013, in the consolidated cases of “Alpine Meadows, L.C. v. Peter Mark Winkler, et al.,” Docket No. 521,779 (“Alpine I”), and “Peter Mark Winkler, et al. v. Alpine Meadows, Garry Black, & James T. Adams,” Docket No. 586,482 (“Alpine II”). Alpine Meadows appeals the granting of a motion for sanctions filed by the Winklers in Alpine I, as well as the dismissal of its reconventional demand with prejudice and the dismissal of the Winklers’ malicious prosecution suit without prejudice in Alpine II. The Wink-lers filed a cross-appeal contending that Alpine Meadows’ reconventional demand in Alpine II is barred by res judicata.

Alpine Meadows also appeals judgments rendered on December 3, 2013, in “Alpine Meadows, L.P. v. Peter Mark Winkler, et al.,” Docket No. 571,922 (“Alpine III”), which sustained exceptions of res judicata filed by the Winklers, Meadowview Minerals (“Meadowview”), as well as Chesapeake Louisiana, L.P., and Chesapeake Operating, Inc. (generally referred to together as “Chesapeake”).

For the reasons explained in this opinion, we reverse the trial court’s denial of the Winklers’ exception of res judicata filed in response to Alpine Meadows’ re-conventional demand in Alpine II, and we affirm in all other respects.

| ¡¿FACTS and PROCEDURAL HISTORY

Alpine I

This ongoing dispute began when Alpine Meadows filed suit on June 8, 2008, against the Winklers and Chesapeake Louisiana to rescind the sale of the golf course for nonpayment of the sales price and thereby cancel a mineral lease granted by the Winklers on April 22, 2008. Because Alpine Meadows based its suit on the original sales price rather than on the reduced principal as subsequently agreed upon by the parties in a 2007 Allonge to the original mortgage note, the trial court agreed with the Winklers’ argument that Alpine Meadows would be unable to prove that they failed to pay any part of the purchase price and granted a summary judgment in their favor.

In conjunction with their motion for summary judgment, the Winklers had also filed on July 14, 2008, a motion for sanctions under La. C.C.P. art. 863 against Alpine Meadows and its then counsel, James T. Adams (“Adams”). The Wink-lers alleged that Alpine Meadows and Adams filed the dissolution suit for an improper purpose and that they misrepresented facts to the court by intentionally concealing the Allonge. They asked the trial court to impose the “death penalty” to permanently enjoin Alpine Meadows from seeking any relief against them or any other party, such as Chesapeake, under any claim or cause of action arising out of the sale of the golf course. They also requested attorney fees and expenses. At the hearing |3on their motion for summary judgment, the Winklers postponed the motion for sanctions, stating that they would take it up at a later date.

Alpine Meadows appealed the summary judgment, but this court affirmed the trial court’s judgment in Alpine Meadows, L.C. v. Winkler, 44,557 (La.App.2d Cir.8/19/09), 17 So.3d 1028, writ denied, 2009-2274 (La.12/18/09), 23 So.3d 943. Noting that the price is an essential element in a suit to dissolve a sale under La. C.C. art. 2561, this court found that Alpine Meadows, by failing to state in its petition the actual price as modified by the Allonge and by failing to amend its petition to state the true facts, would be unable to satisfy its evidentiary burden at trial. We found it to be “disconcerting that Alpine Meadows failed to mention the extremely pertinent fact that the original note had been amended in 2007 by the Allonge[.]” Id., p. 5, at 1031. This court also found no genuine issue of material fact surrounding the execution of the Allonge, even though it was signed by Mrs. Winkler four months after it was signed by Mr. Winkler. We concluded that her signature was immaterial because his alone sufficed to bind their community.

Alpine II

On December 1, 2009, the Winklers filed a petition against Alpine Meadows, its managing partner, Garry Black (“Black”), and Adams, seeking damages for malicious prosecution of Alpine I and a declaratory judgment that the foreclosure threatened by Black in a letter dated October 29, 2009, as well as any action to enforce the Allonge or arising out of the sale, is barred by res judicata. In the October 29, 2009, letter sent shortly after this h court’s opinion in Alpine I, Black sought payment of $163,340.52 allegedly past due under the Allonge. Referring to a clause in the credit sale prohibiting leasing of the golf course property, Black advised the Wink-lers that he would waive that provision if they paid him $50,000 from the lease bonus they received and transferred 50% of their royalty interest to him.

Asserting that this court’s opinion in Alpine I reserved its right to bring foreclosure proceedings, Alpine Meadows filed a reconventional demand against the Wink-lers for the full amount due under the Allonge, plus interest, late fees, and attorney fees. Alpine Meadows alleged that the Winklers had failed to pay any installment when due, had paid nothing on the principal, had not paid ad valorem taxes when due for the years 2001 through 2008, had failed to pay the monthly deposit for taxes ’ and insurance premiums, and had either not kept the property insured or provided proof of insurance. Alpine Meadows complained that the mineral lease granted by the Winklers to Chesapeake violated provisions of the credit sale. It also complained that the Winklers had assigned one-third of their mineral interest to Meadowview but had not paid any part of the price they received for the assignment toward the purchase price of the golf course.

In response to Alpine Meadows’ recon-ventional demand, the Winklers filed an exception of res judicata on October 25, 2010. By order granted on June 28, 2011, the pending motion for sanctions from Alpine I was consolidated with Alpine II. Alpine Meadows then filed a motion for summary judgment on its reconventional demand, and the Winklers filed a motion for summary judgment on the issue of res judicata. By judgments |firendered January 17, 2012, the trial court denied both motions for summary judgment and overruled the Winklers’ exception of res judi-cata. In doing so, the trial court opined that a full trial on the merits was warranted. Both parties applied for supervisory review of the trial court’s rulings, but both writs were denied.

A hearing took place on March 26, 2013. The parties reurged their respective motions for summary judgment, and the Winklers also reurged their exception of res judicata. The Winklers’ motion for sanctions in Alpine I was taken up as to Alpine Meadows, with the Winklers reserving their rights as to Adams for another time. The trial court heard testimony on the sanctions motion from Adams and Black, as well as from attorneys for the Winklers, Joseph Naus (“Naus”) and James Robert Madison (“Madison”).

. The trial court rendered written reasons for judgment on May 29, 2013. Although the trial court again denied both motions for summary judgment and overruled the Winklers’ exception of res judicata, it found the Winklers’ motion for sanctions to be meritorious and made a number of specific findings in support of severe sanctions against Alpine Meadows. Noting that Adams signed and notarized the Alpine I petition and that Black, as Alpine Meadows’ operating manager, signed the affidavit verifying the allegations of the petition, the trial court concluded that:

Adams and Black had first-hand knowledge of the Allonge when they filed the petition in district court and intentionally concealed it. Incredibly, both Adams and Black took and seem to have maintained the position that the Allonge was not signed and therefore had no legal efficacy at the time of the filing of the petition. The documentary evidence and the payments received without hesitation |fior complaint by Alpine both evidence the agreed-upon debt amendment and restructuring. The Court totally rejects the in court testimony of Messrs. Adams and Black.

The' trial court found that the Alpine I petition was filed because of the mineral lease granted by the Winklers and that Alpine Meadows intentionally concealed the Allonge “in a scheme motivated by greed” to force the Winklers either to assign part of the lease to it or surrender the property. The trial court noted that the petition was filed after Black had requested an interest in the lease and that Adams’ actions were “peculiar” when confronted by Madison and Naus about the Allonge. The trial court was incensed by the fact that Alpine Meadows had “enlisted the judiciary in its scheme to obtain an unwarranted and unconscionable result, all inconsistent with the law and evidence and our honorable system of justice.” In line with these findings, the trial court concluded that there was a “substantial and intentional” violation of La. C.C.P. art. 863. It determined the appropriate sanction to be an order limiting any recovery under the Allonge to prospective relief and forfeiting Alpine Meadows’ right to recover any of the allegedly past due principal, interest, late fees, attorney fees or other sums under the Allonge. The trial court also cast Alpine Meadows -with attorney fees.

The Winklers filed a motion to fix attorney fees in the amount of $247,950 and expenses in the amount of $7,309.55. They also asked the trial court to clarify its ruling on sanctions. They asserted -that Alpine Meadows, by accelerating the full amount due under the Allonge in its 17reconventional demand, would have no right to any prospective payments. They believed this was not what the trial court intended.

In a ruling on July 27, 2013, the trial court clarified its earlier ruling on Alpine Meadows’ prospective rights. The trial court reduced the principal by a third and ordered it to be paid in monthly installments beginning after the finality of the sanctions judgment. The trial court asked the parties to stipulate as to the interest on the reduced principal. The trial court also ordered Alpine Meadows to pay the Winklers $175,000 in attorney fees plus $7,309.10 in costs and expenses, a total of $182,309.10.

When the parties were unable to agree upon an interest rate, the trial court supplemented its ruling on the issue by directing them to survey local banks to determine the average prime interest rate for commercial loans in the area. When it was determined that there was no such rate, the trial court again supplemented its ruling on sanctions to set the prospective interest rate at a fixed rate of five percent per annum.

The trial court rendered a final judgment in line with these rulings on October 4, 2013. The judgment denied the competing motions for summary judgment and the Winklers’s exception of res judicata. It dismissed Alpine Meadows’ reconven-tional demand with prejudice and the Winklers’ malicious prosecution suit without prejudice, reserving their right to file a motion for sanctions against Black and Adams. As sanctions against Alpine Meadows, the judgment replaced its right to recover under the original note as amended by the Allonge to a reduced principal amount of $542,897.85, plus five percent annual interest accruing on the date the judgment is final |sand executory. It ordered payments in 360 monthly installments of $2,914.39, beginning the first day of the month after the month the judgment becomes final and executory. Lastly, the judgment cast Alpine Meadows with attorney fees and expenses as ordered along with all costs of the proceedings.

Alpine Meadows and Black, with the assistance of new counsel, filed a motion for a new trial and a special plea of unconstitutionality. They asserted that the trial court’s interpretation and application of La. C.C.P. art. 863 violated La. Const. Art. I, §§ 2 and 23. The trial court denied both the motion for a new trial and the special plea on December 3, 2013. Thereafter, Alpine Meadows filed a suspensive appeal from the sanctions judgment, and a devolutive appeal as to the rest of the October 4, 2013, judgment. The Winklers filed a devolutive appeal seeking review of the trial court’s denial of their exception of res judicata and motion for summary judgment.

Alpine III

While seeking a new trial and other relief from the judgment rendered in Alpine II, Alpine Meadows instituted Alpine III by filing a petition for a declaratory judgment and supplemental relief on October 7, 2013, against the Winklers, Chesapeake, and Meadowview. Alpine Meadows alleged that the mineral lease granted in favor of Chesapeake on April 22, 2008, the assignment by Winklers to Meadowview on July 29, 2008, a pipeline easement granted by the Winklers to Chesapeake on January 5, 2010, and the completion of a producing well on a unit that includes the property in |9dispute all violated various provisions of the credit sale. Alpine Meadows sought a judgment declaring the mineral lease, the assignment, and the easement invalid and of no effect. It also sought an accounting of all proceeds of the production from the well. In response, all the defendants filed exceptions of res judi-cata. In judgments rendered on December 3, 2013, the trial court sustained the exceptions and dismissed Alpine Meadows’ claims with prejudice. Alpine Meadows appealed.

On an unopposed motion by Alpine Meadows and Black, this court ordered the appeals consolidated. On July 17, 2014, Alpine Meadows and Black filed an exception of prescription, arguing that the motion for sanctions filed by the Winklers in Alpine I was untimely or had been abandoned. The exception has been referred to the merits of this appeal.

DISCUSSION

Res Judicata

As stated, the Winklers appeal the denial of their exception of res judicata filed in response to Alpine Meadows’ reconven-tional demand in Alpine II. Alpine Meadows appeals the judgments sustaining the defendants’ exceptions of res judicata in Alpine III. The exceptions in both matters turn on the preclusive effect of the judgment in Alpine I.

The law on res judicata is set forth in La. R.S. 13:4231 as follows:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1)If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
|10(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

Under the res judicata statute, a second action is precluded when the following are satisfied: (1) the judgment is valid; (2)the judgment is final; (3) the parties are the same; (4) the cause or cause of action asserted in the second suit existed at the time of the final judgment in the first suit; and (5) the cause or causes of action in the second suit arose out of the same transaction or occurrence that was the subject matter of the first litigation. Burguieres v. Pollingue, 2002-1385, p. 8 (La.2/25/03), 843 So.2d 1049, 1053. Whether the cause of action asserted in the second suit arises out of the same transaction or occurrence which was the subject matter of the first suit is the chief inquiry. Id., at p. 7, 843 So.2d at 1053; Terrebonne Fuel & Lube, Inc. v. Placid Refining Co., 95-0654 (La.1/16/96), 666 So.2d 624; Hudson v. City of Bossier, 33,620 (La.App.2d Cir.8/25/00), 766 So.2d 738, wnit denied, 2000-2687 (La.11/27/00), 775 So.2d 450.

Res judicata promotes the dual purposes of judicial efficiency and the final resolution of disputes by preventing needless relitigation. Terrebonne Fuel, supra; Mandalay Oil & Gas, L.L.C. v. Energy Development Corp., 2001-0993 (La.App. 1st Cir.8/4/04), 880 So.2d 129, unit denied, 2004-2426 (La.1/28/05), 893 So.2d 72. Res judicata forecloses both the |T1relitigation of matters that have not been litigated but should have been raised in the earlier suit (claim preclusion) and matters previously litigated and decided (issue preclusion). Hudson, supra.

The res judicata effect of a prior judgment is a question of law that is reviewed de novo on appeal. Siemens Water Technologies Corp. v. Revo Water Systems, LLC, 2013-681 (La.App. 3d Cir.1/8/14), 130 So.3d 473; Bovie v. St. John the Baptist Parish, Dept. of Streets and Roads, 2013-162 (La.App. 5th Cir.9/4/13), 125 So.3d 1158; Pierrotti v. Johnson, 2011-1317 (La.App. 1st Cir.3/19/12), 91 So.3d 1056.

Appealing the Alpine II judgment denying their exception, the Winklers argue that Alpine Meadows’ foreclosure action to collect the unpaid purchase price under the Allonge is barred by the final judgment rendered in Alpine I. Alpine Meadows argues that this court expressly reserved its right to pursue relief under the Allonge and that its reconventional demand in Alpine II is based upon different transactions or occurrences than its demand in Alpine I. Alpine Meadows argues the same with regard to its appeal from the Alpine III judgments sustaining the defendants’ exceptions of res judicata.

Before we determine whether the requirements necessary for the application of res judicata are satisfied, we must address that part of this court’s prior opinion, Alpine Meadows, supra, which Alpine Meadows claims reserved its rights to proceed under the Allonge. After affirming the trial court’s summary judgment in favor of the Winklers and dismissal of Alpine Meadows’ claim with prejudice, this court addressed whether Alpine | ^Meadows would then be prevented from bringing suit on the obligation evidenced by the Allonge. In addressing that matter, which was not essential to our review of the summary judgment, this court rendered an advisory opinion that must be considered as purely obiter dicta and not binding on either the lower court or this court. Meaux v. Wendy’s Intern., Inc., 2010-2613 (La.5/13/11), 69 So.3d 412; Mandalay, supra,. Moreover, we disagree with Alpine Meadows’ contention that this court expressly reserved its rights to proceed under the Allonge. This court merely opined that Alpine Meadows could file suit against the Winklers if they breached their obligations “at some other time.” Alpine Meadows, p. 7, 17 So.3d at 1032. The opinion that Alpine Meadows may file a suit for some future breach does not equate to a reservation of rights to bring claims that could and should have been asserted in Alpine I.

We now address whether Alpine Meadows’ reconventional demand in Alpine II and claims in Alpine III are precluded by Alpine I. The summary judgment, which was granted in Alpine I in favor of the Winklers and which dismissed Alpine Meadows’ action with prejudice, is a valid and final judgment. Therefore, the first two requirements of res judicata are satisfied.

The third requirement is that the parties must be the same in both suits. Absent an identity of the parties in the first and subsequent actions, the exception of res judicata will not be maintained. Ward v. State, Dept. of Transp. & Dev. (Office of Highways), 43,948 (La.App.2d Cir.1/28/09), 2 So.3d 1231, writ denied, 2009-0431 (La.4/17/09), 6 So.3d 791; Hudson, | nsupra. Identity of parties does not mean that the parties must be the same physical or material parties; rather, it means that the parties must appear in the suit in the same quality or capacity. Burguieres, supra; Ward, supra; Hudson, supra. Identity of parties is satisfied when a privy of one of the parties is involved. Burguieres, supra; Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La.1978). As it pertains to the doctrine of res judicata, a privy is defined as “one who, after the commencement of an action, has acquired an interest in the subject matter affected by the judgment through or under one of the parties, as by inheritance, succession, purchase or assignment.” Five N Company, L.L.C. v. Stewart, 2002-0181, p. 16 (La.App. 1st Cir.7/2/08), 850 So.2d 51, 61 citing Black’s Law Dictionary (6th Ed. 1990). In Hudson, supra, this court explained:

Under federal law, the preclusive effect of a judgment binds the parties to the action and nonparties who are deemed the “privies” of the parties in these limited circumstances: (1) the nonparty is the successor in interest of a party; (2) the nonparty controlled the prior litigation; or (8) the nonparty’s interests were adequately represented by a party to the action who may be considered the “virtual representative” of the nonparty because the interests of the party and nonparty are so closely aligned.

Id., p. 7, 766 So.2d at 743 (citations omitted).

The Winklers correctly point out that Alpine II involved the same parties in the same capacities as Alpine I. Likewise, Alpine III involved the same parties, and privies of the Winklers, in the same capacities as in Alpine I. The Chesapeake defendants and Meadowview acquired from the Winklers interests in the golf course property that is the subject matter of the litigation. Because their interests in the mineral lease, the assignment, and the pipeline servitude depend upon the Winklers’ ownership of the |14property, their interests are so closely aligned that the Winklers can be viewed as their “virtual representatives” for purposes of the preclusive effect of Alpine I as to the claims asserted in Alpine III. We find that the third requirement of res judicata is satisfied in both Alpine II and Alpine III.

The fourth requirement is that the cause of action asserted in the subsequent suit existed at the time of the final judgment in the first suit. The cause of action asserted in Alpine II for foreclosure under the Al-longe undoubtedly existed at the time of the final judgment in Alpine I. As for Alpine III, the Winklers granted the mineral lease on April 22, 2008, and they assigned part of their interest to Meadow-view on July 29, 2008. As such, any cause of action alleging that the lease or assignment violated provisions in the credit sale existed at the time of the final judgment in Alpine I. The subsequent granting of the pipeline servitude and the drilling of a producing well on a unit in which the golf course property is included flow directly from the mineral .lease. As such, these alleged violations of the credit sale are merely derivative of the initial alleged violation that resulted when the Winklers granted the mineral lease. We find that the fourth requirement is satisfied as to the exceptions of res judicata asserted in Alpine II and Alpine III.

| ^Finally, the chief inquiry and fifth requirement is that the cause or causes of action asserted in the subsequent suit must arise out of the same transaction or occurrence which was the subject matter of the first suit. Failure to raise a claim that arises from the transaction or occurrence of the first suit amounts to a waiver of that claim. Medicus v. Scott, 32,326 (La.App.2d Cir.9/22/99), 744 So.2d 192. The transaction or occurrence that is the subject matter ,of the first suit is the credit sale of the golf course by Alpine Meadows to the Winklers. The original mortgage note and the Allonge are part and parcel of the transaction by which Alpine Meadows sold the golf course to the Winklers. The Allonge merely modified the obligation under the original note. We find no merit to Alpine Meadows’ argument that the transaction or occurrence that was the subject matter of Alpine I differs from those involved in Alpine II or Alpine III. The claims asserted by Alpine Meadows in the three suits are separate causes of action arising from the same transaction or occurrence, namely, the credit sale. Alpine Meadows’ actions asserted in Alpine I under the original note to rescind the sale and thereby cancel the mineral lease because of nonpayment of the purchase price, in Alpine II to foreclose because of the, failure to pay the purchase price under the Allonge, and in Alpine III for a declaratory judgment based on alleged breaches of the credit sale are exactly the type of piecemeal litigation that the doctrine of res judicata is intended to prevent. The causes of action asserted in Alpine II and Alpine II could and should have been raised in Alpine I.

|1fiFor these reasons, we find that the requirements for the application of res ju-dicata as to Alpine Meadows’ reconven-tional demand in Alpine II and its action for a declaratory judgment in Alpine III are satisfied. Because we find merit to the exceptions of res judicata based on the final judgment in Alpine I, we need not address those arguments concerning whether the dismissal of Alpine Meadows’ reconventional demand in Alpine II provides a separate ground for the exceptions asserted in Alpine III.

To avoid the dismissal of its claims, Alpine Meadows argues that exceptional circumstances justify relief from the rule of res judicata. As provided by La. R.S. 13:4232(A)(1), a judgment does not bar another action by the plaintiff when exceptional circumstances justify relief from the res judicata effect of the judgment. This provision allows a court to exercise its discretion to balance the principle of res judicata with the interests of justice. Hudson, supra. Generally, “exceptional circumstances” are found in complex procedural situations, such as where a litigant did not have the opportunity to present his claim due to some quirk in the system. Mandalay, supra, citing Chaisson v. Oceanside Seafood, 97-2756 (La. App. 1st Cir.6/29/98), 713 So.2d 1286, Exceptional circumstances may also be found in factual scenarios not anticipated by the parties or decisions beyond the parties’ control. Id.

We find no exceptional circumstances warranting relief from res judicata as to Alpine Meadows’ reconventional demand in Alpine II or declaratory judgment action in Alpine III. To the extent that exceptional circumstances exist in these matters, they are of Alpine Meadows’ own |17making by initially filing suit without mentioning that the obligation sued upon had been modified by the Allonge. The tactics employed by Alpine Meadows in its transparent and repeated attempts to wrest the golf course property from the Winklers upon learning that they had granted a lucrative mineral lease to Chesapeake have resulted in the complexities of these consolidated matters. What is not complex is that Alpine Meadows could and should have asserted its causes of action arising from the Winklers’ alleged breaches of the Allonge and credit sale in Alpine I and that these various claims are now barred by res judicata.

In light of the above discussion, we reverse the trial court’s denial of the Wink-lers’ exception of res judicata filed in Alpine II and hereby sustain that exception, dismissing Alpine Meadows’ reconventional demand with prejudice. Because of this ruling, we need not address Alpine Meadows’ argument that the trial court erred in dismissing its reconventional demand with prejudice as part of its ruling on sanctions. We affirm the trial court’s judgments in Alpine III.

Sanctions

We now turn to Alpine Meadows’ appeal from the judgment granting the Winklers’ Alpine I motion for sanctions. In short, Alpine Meadows argues that the trial court’s finding of sanctionable conduct was manifestly erroneous and that its award of attorney fees and its reduction of the amount recoverable under the Allonge constitute an abuse of discretion. Alpine Meadows has also filed an exception of prescription seeking to have the motion for sanctions dismissed by this court as untimely or abandoned.

[ 1sLa. C.C.P. art. 863 provides:

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.
B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading, and that to the best of his knowledge, information, and belief formed after reasonable inquiry, he certifies all of the following:
(1) The pleading is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.
(2) Each claim, defense, or other legal assertion in the pleading is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law. ■
(3) Each allegation or other factual assertion in the pleading has evidentiary support or, for a specifically identified allegation or factual assertion, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
(4) Each denial in the pleading of a factual assertion is warranted by the evidence or, for a specifically identified denial, is reasonably based on a lack of information or belief.
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.
D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party the amount of the reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees.
E. A sanction authorized in Paragraph D shall be imposed only after a hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sanction.
|iaF. A sanction authorized in Paragraph D shall not be imposed with respect to an original petition which is filed within sixty days of an applicable prescriptive date and then voluntarily dismissed within ninety days after its filing or on the date of a hearing on the pleading, whichever is earlier. .
G. If the court imposes a sanction, it shall describe the conduct determined to constitute a violation of the provisions of this Article and explain the basis for the sanction imposed.

This article is to be utilized for exceptional circumstances. Woods v. Woods, 43,182 (La.App.2d Cir.6/11/08), 987 So.2d 339, writ denied, 2008-2256 (La.11/21/08), 996 So.2d 1110; Brown v. Sanders, 2006-1171 (La.App. 1st Cir.3/23/07), 960 So.2d 931. The slightest justification for the exercise of a legal right precludes sanctions. Woods, supra. The trial court’s factual findings for imposing sanctions is reviewed under the manifest error standard. Walters v. Klagholz, 43,944 (La.App.2d Cir.1/14/09), 999 So.2d 1212; Jones v. Bethard, 39,575 (La.App.2d Cir.4/13/05), 900 So.2d 1081, unit denied, 2005-1519 (La.12/16/05), 917 So.2d 1115. Once the trial court determines that sanctions are appropriate, it has considerable discretion as to the type and severity of the sanctions imposed. Cloud v. Barnes, 47,764 (La.App.2d Cir.4/17/13), 116 So.3d 67, unit denied, 2013-1304 (La.9/27/13), 122 So.3d 1006, recon. not cons., 2013-1304 (La.11/1/13), 124 So.3d 1105; Daigle v. City of Shreveport, 46,429 (La.App.2d Cir.10/5/11), 78 So.3d 753, writ denied, 2011-2472 (La.2/3/12), 79 So.3d 1027. Therefore, we review the type and amount of the sanction under the abuse of discretion standard. Cloud, supra; Jones, supra.

12flThe following four factors for consideration when arriving at an appropriate sanction have evolved: (1) the conduct being punished or sought to be deterred by the sanction; (2) the expenses or costs caused by the violation of the rule; (3) whether costs or expenses are reasonable, as opposed to self-imposed, mitigable, or the result of delay in seeking court intervention; and (4) whether the sanction is the least severe sanction adequate to achieve the purpose of the rule under which it was imposed. Cloud, supra; Dai-gle, supra.

We begin with Alpine Meadows’ contention that the trial court was manifestly erroneous in finding sanctionable conduct. As justification for its filing of the Alpine I petition without pleading the Allonge, Alpine Meadows argues both that it was not aware when Alpine I was filed that Mrs. Winkler had signed the Allonge and that it was reasonable in believing, based on the advice of its attorney, Adams, that the Allonge was not valid because it had not been timely accepted by Mrs. Winkler.

At the March 26, 2013, hearing, the trial court heard testimony concerning whether sanctions should be imposed on Alpine Meadows. The record evidence and testimony established that Black and Mr. Winkler signed the Allonge on March 2, 2007. Adams notarized their signatures. Mrs. Winkler left the meeting that day without signing, but she returned to | ⅞1 Adams’ office and signed on July 5, 2007. Adams testified that he did not learn that she had signed until he met with the Wink-lers’ attorneys and found the signed Al-longe in a box of Alpine Meadows files at his home. He claimed that he had wiped the Allonge out of his mind and had not discussed it with Black before filing the Alpine I petition. Adams explained that he did not amend the Alpine I petition because he believed that Mrs. Winkler’s failure to sign in March 2007 constituted a rejection of the offer. He also asserted that because the Winklers had been paying $4,000 per month, rather than $4,010.32 required under the Allonge, they were simply continuing under the “old deal.” However, he admitted that the Winklers were never informed that the $4,000 payment was short and that there was no demand letter until after he read in a legal newsletter that they had entered a lease with Chesapeake and informed Black of that development. He asked Black whether the Winklers were up to date on then-payments and advised that Alpine Meadows could either file a foreclosure proceeding or sue to rescind the sale. Adams could not testify as to how much the Wink-lers were allegedly in arrears.

Regarding his meeting with Madison and Naus, Adams testified that he told them he did not recall a new agreement between Alpine Meadows and the Wink-lers. He telephoned Black so they could question him about whether anything had been signed. Adams then found in his office unsigned copies of the amended credit sale and Allonge. Adams testified that he went to his home with Madison and finally found the signed documents there.

|2i)Black recalled that he and Mr. Wink-ler signed the Allonge on March 2, 2007, but that Mrs. Winkler had to leave before signing to get her children from school. Black testified that Adams told him there was no new agreement without Mrs. Wink-ler’s signature. Black admitted that he did not object to the $4,000 monthly payments. He also admitted that Adams contacted him after seeing a notice about the Winklers’ mineral lease. Soon after, Black demanded a share of the Winklers’ royalty interest and lease bonus before finally filing Alpine I.

Naus testified that the Winklers told him and Madison that they had signed an Allonge. Because the Winklers were consistent and precise about what had occurred, Naus and Madison decide to confront Adams at his office rather than send another discovery request. The Winklers’ former counsel had requested documents from Adams and received none. When they met Adams at his office, he first denied any existence of the Allonge. After calling Black, Adams produced unsigned copies of the amended credit sale and Al-longe. In looking through these documents, Naus noticed a reference indicating the Allonge had been signed on March 2, 2007. He testified that after questioning Adams about the note, Adams then produced a file that had sticky notes indicating that the Allonge was attached to the original note and that Black would pick up the Allonge. Because all of this was consistent with what the Winklers had told them, they kept questioning Adams, who finally said that the documents might be in a safe at his home.

According to Naus, Adams had not been forthcoming with them. When they began questioning him, Adams did not even admit that Black fyand Mr. Winkler had signed the Allonge. Naus testified that once they obtained the signed documents, they determined the amount necessary to cure any default and mailed Black a check for $20,000. Black returned the payment with instructions to send no further payments until the litigation ended.

Madison testified that he spoke with Black when Adams made the call from his office. He testified that Black denied any modification of the agreement with the Winklers and did not mention anything about an issue with Mrs. Winkler’s signature. Madison also testified about what occurred at Adams’ home. Adams first looked in his safe. After not finding anything, Adams looked for several minutes through piles of papers. Adams finally checked the den, where he walked directly to a stack of papers and pulled out the original note along with the signed Al-tange. x

After having been closely involved in this matter for some time and after having listened to the testimony at the sanctions hearing, the trial court concluded that Adams and Black “had first-hand knowledge of the Allonge when they filed [Alpine I] and intentionally concealed it.” The trial court determined that both the documentary evidence and the fact that Alpine Meadows received the Winklers’ payments without complaint established that the parties had agreed to the restructuring of the debt under the Allonge. The trial court noted that the Winklers had difficulty convincing their lawyers that they had signed documents restructuring their debt and that the existence of the signed Allonge was discovered only through the “persistent and laborious efforts” of Naus and Madison.

| «With regard to the specific violations of Article 863, the trial court determined that the Alpine I petition was filed for an improper purpose in a “scheme motivated by greed” to force the Winklers either to assign a part of their mineral interest to Alpine Meadows or give up the property; that the claims and legal assertions in the petition were not well grounded in fact or warranted by existing law due to the omission of the Allonge; and that the petition involved the “judiciary in a scheme to obtain an unwarranted and unconscionable result[.]”

The trial court made specific findings of fact based largely on its credibility determinations. Such findings demand great deference because only the fact finder is aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in the testimony. Foley v. Entergy Louisiana, Inc., 2006-0983 (La.11/29/06), 946 So.2d 144; Rosell v. ESCO, 549 So.2d 840 (La.1989). In the absence of contradictory documentary or objective evidence, or internal inconsistency or implausibility in a witness’s story, factual findings based on credibility determinations can virtually never be manifestly erroneous or clearly wrong. Foley, supra,: Rosell, supra. Applying these standards to the trial court’s factual findings, we cannot say the trial court was manifestly erroneous.

Though Adams and Black both claimed that the Allonge was ineffective because not timely signed by Mrs. Winkler, neither mentioned this to Madison and Naus during their search for the Allonge. Moreover, nothing in the Allonge required acceptance by a certain date. Neither Adams nor Black testified that they informed the Winklers that the offer | afiwould expire by a particular date if not signed by Mrs. Winkler or that the offer was rejected when she left the March 2, 2007, meeting without signing. The record shows that Mrs. Winkler did sign the Allonge, that it was in Adams’ possession, and that it was uncovered only after Madison and Naus confronted Adams and forced the issue. Moreover, the record shows that Alpine Meadows was satisfied with the Winklers’ payments until learning of the mineral lease. Alpine Meadows then filed suit without any mention of the fact that the Winklers’ obligation had been modified by the Allonge. We find that the facts and circumstances support the trial court’s factual findings regarding violations of Article 868.

We find no merit to Alpine Meadows’ argument that sanctions should have been imposed upon Adams only because any sanctionable conduct was his alone. Under Article 863(D), the court may impose sanctions on the person who made the certification, the represented party, or both. Black, as Alpine Meadows’ operating manager, signed the affidavit attached to the Alpine I petition verifying that the allegations of fact therein were true and correct. The trial court specifically found that his affidavit was “materially false in a number of respects.” The affidavit did not mention that the obligation had been restructured by the Allonge. As discussed, the trial court discredited Black’s testimony and obviously found him, and through him Alpine Meadows, to be a part of the scheme being perpetrated against the Winklers through the filing of Alpine I. Thus,' the sanctionable conduct |2fiwas not attributable to Adams alone, and sanctions were appropriate as to Alpine Meadows.

We turn now to Alpine Meadows’ arguments challenging the type and amount of sanctions imposed. First, Alpine Meadows argues that the trial court’s judgment erroneously impairs the obligation of contracts in violation of La. Const. Art. I, § 23 by rewriting the contract between the parties to reduce the remaining principal amount by a third and to reduce the interest rate. In arguing that the trial court may not rewrite a contract between the parties, Alpine Meadows cites Clovelly Oil Co., LLC v. Midstates Petroleum Co. LLC, 2012-2055 (La.3/19/13), 112 So.3d 187 and Texas Co. v. State Mineral Board, 216 La. 742, 44 So.2d 841 (La.1949). Both cases state that courts have no authority to alter or make new contracts for the parties. However, these cases deal with the trial court’s interpretation of contracts, not the imposition of sanctions which is at issue here. Thus, they are not directly applicable to the issue of sanctions.

Alpine Meadows further argues that unlike Rule 11 of the Federal Rules of Civil Procedure, Article 863 does not authorize nonmonetary sanctions. Rule 11 provides that a sanction may include “non-monetary directives,” a penalty paid to the court, or payment of reasonable attorney fees and expenses that directly result from the violation. Fed. Rule Civ. Proc. 11(c)(4). Article 863(D) authorizes “an appropriate sanction which |27may include an order to pay to the other party the amount of the reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees.” While Article 863 does not specifically provide for nonmonetary penalties, it does not exclude them as an “appropriate sanction.” As stated, the type and severity of the sanction imposed falls within the considerable discretion of the trial court. Daigle, supra.

In fashioning an appropriate sanction, the trial court rejected the Winklers’ request for the “death penalty,” a dismissal which would have arguably left Alpine Meadows, which had accelerated the debt, with no right to prospective relief under the Allonge and amended credit sale. After concluding that Alpine Meadows’ actions in violation of Article 863 were intentional, deceptive, malicious, egregious, a fraud on the court, and a “veritable attack on our system of justice,” the trial court determined an appropriate sanction to be a limitation on any prospective recovery to which Alpine Meadows might be entitled. As detailed in the facts section of this opinion, the trial court ultimately reduced the principal amount of the debt by a third and ordered that amount payable at five percent annual interest. In effect, the trial court imposed a significant monetary sanction which it believed to be warranted by Alpine Meadows’ intentional failure to disclose the more favorable terms of the Allonge when it filed Alpine I. Considering the severity of Alpine Meadows’ actions as thoroughly set forth by the trial | ?scourt along with the significant discretion afforded the trial court in fashioning an appropriate sanction, we find no abuse of discretion by the trial court and no impermissible impairment of the parties’ contractual obligations.

Alpine Meadows next argues that it was denied access to the court on its reconven-tional demand due to the trial court’s dismissal of that demand. Because we have determined that the reconventional demand in Alpine II must be dismissed on the Winklers’ well-founded exception of res judicata, this argument is now moot.

Alpine Meadows also argues that it was denied due process because it is being punished for Adams’ actions and because the trial court did not hold a hearing before reducing the interest rate and extending the term of payment under the Allonge as part of its sanction. As to the first argument, we have already addressed the fact that Alpine Meadows was appropriately sanctioned for its own conduct through the actions of Black. As to the latter argument, Article 863 requires a hearing at which a party may present evidence or argument before a sanction may be imposed. La. C.C.P. art. 863(E). Notice and an opportunity to be heard is the only due process required before the imposition of sanctions under Rule 11. Childs v. State Farm Mut. Auto. Ins. Co., 29 F.3d 1018 (5th Cir.1994). There is no requirement under Article 863 or Rule 11 for a hearing as to the type or severity of the sanction imposed. Moreover, the record shows that Alpine Meadows was not denied any due process. It presented testimony at the sanctions hearing and vigorously opposed the imposition of sanctions. Its_[2f,vigorous opposition continued with new counsel even after the trial court issued its May 29, 2013, reasons for judgment addressing the sanctions. Counsel was involved in arguments regarding the particulars of the sanctions at proceedings on July 8, 2013, July 15, 2013, and October 4, 2013. Alpine Meadows also filed a motion for new trial and special plea of unconstitutionality which were argued on December 2, 2013. We find no support in this record for Alpine Meadows’ argument that it was denied due process.

Alpine Meadows also argues that, in any event, the sanctions imposed were grossly excessive and an abuse of discretion. We have already addressed the sanction reducing the amount recoverable prospectively by Alpine Meadows and will not revisit that issue here. Alpine Meadows argues that there is no -basis for the amount of attorney fees and expenses awarded by the trial court. Asserting that any defect was corrected on June 17, 2008, when Adams “delivered” a copy of the Allonge and amended credit sale to the Winklers’ attorneys, Alpine Meadows would limit attorney fees to legal work done prior to that date in the amount of $6,480.

Applying the factors for consideration in arriving at an appropriate sanction, we find that the trial court intended to impose a harsh and significant sanction in light of conduct it found to be unusually egregious. As required by Article 863(G), the trial court described the conduct it found to constitute a violation and explained its basis for imposing the harsh sanction. We found no manifest error in the trial court’s factual basis for imposing sanctions.

| ünThe second and third factors require consideration of whether the ex- • penses or costs were caused by a violation of the rule and whether they are reasonable rather than self-imposed, mitigable, or the result of delay in seeking court intervention. For purposes of Article 863, reasonable is not construed as equivalent to actual expenses. A determination of reasonableness must include consideration of the goals of deterrence, punishment, and compensation. Mendonca v. Tidewater, Inc., 2011-0318 (La.App. 4th Cir.9/7/11), 73 So.3d 407, writ denied, 2011-2333 (La.12/2/11), 76 So.3d 1179; Derouin v. Champion Ins. Co., 580 So.2d 1043 (La. App. 3d Cir.1991), writ denied, 585 So.2d 574 (La.1991). The trial court’s knowledge of the facts of a case is another important factor to consider in reviewing the reasonableness of an award. Mendonca, supra. This is because the trial court is best able to “review the factual circumstances and render an informed judgment as he is intimately involved with the case, the litigants, and the attorneys on a daily basis.” Id., p. 10, 73 So.3d at 415, citing Thomas v. Capital Security Services, Inc., 836 F.2d 866, 873 (5th Cir.1988).

A hearing on the amount of attorney fees took place on June 26, 2013. The Winklers actually sought $252,950 in attorney fees plus $7,309.10 in expenses. After considering the exhibits and testimony adduced at the hearing, the trial court determined reasonable attorney fees to be $175,000, plus expenses. The trial court clearly found that Alpine Meadows was in bad faith when it filed Alpine I based on the original note. |s1As found by the trial court; the signed Allonge was uncovered only through the persistent and laborious efforts of the Winklers’ attorneys.

Even after the Allonge came to light, Alpine Meadows persisted in its litigation of Alpine I as though it did not exist and had no effect. When the Winklers attempted to cure the deficiency under the Allonge by paying $20,000, Alpine Meadows, through Black, refused the payment. Alpine Meadows then threatened foreclo-súre under the Allonge, which prompted the Winklers to file Alpine II. We agree with the Winklers that Alpine II would not have been filed but for the sanctionable conduct in Alpine I.

Alpine Meadows’ bad faith actions, as thoroughly detailed by the trial court, resulted in the Winklers incurring significant attorney fees all in connection with Alpine Meadows’ bad faith efforts to wrest the golf course property from the Winklers so that it could benefit from the valuable mineral rights. Though harsh and significant, the sanction can be viewed as the least severe to address the litigation abuse perpetrated by Alpine Meadows and to achieve the purposes of deterrence, punishment, and compensation. In light of the considerable discretion afforded the trial court in determining an appropriate sanction, we find that the attorney fees and expenses awarded by the trial court were caused by Alpine Meadows’ violation of Article 863 and that the total sanction imposed was reasonable under the facts of this case.

[.^Finally, we find no merit to Alpine Meadows’ exception of prescription and motion to dismiss filed with this court. Article 863 does not provide a time limitation for the filing of a motion for sanctions by a party. In fact, the trial court on its own motion may impose sanctions under the article. La. C.C.P. art. 863(D). Article 863 is not viewed as providing a private cause of action, but as a remedial tool for the court. Frazer v. Bruscato, 34,021 (La. App.2d Cir.11/1/00), 772 So.2d 293, citing Montalvo v. Sondes, 93-2813 (La.5/23/94), 637 So.2d 127, fn. 6.

In, Frazer, supra, this court affirmed a trial court judgment dismissing a motion for sanctions as untimely. The motion for sanctions had been filed more than six years after the filing of the offending petition. In line with federal jurisprudence interpreting Rule 11, this court concluded that motions for Article 863 sanctions should be filed within a reasonable time frame so as to afford the offending attorney (or party) the opportunity to defend himself and the court an opportunity to rectify the offending conduct.

Here, the Winklers filed their motion for sanctions on July 14, 2008, a little over a month after the filing of the petition in Alpine I by Alpine Meadows on June 8, 2008. At the hearing on the Alpine I motion for summary judgment, the Wink-lers indicated they would take up the motion for sanctions at a later date. There was no objection by Alpine Meadows to the postponement, and no objection raised when the motion was reurged and heard on March 26, 2013, in conjunction with arguments in Alpine II. |aaAlpine Meadows offered the testimony of Black and Adams in its defense at the hearing and vigorously opposed the factual the basis for the imposition of sanctions.

Litigation involving these parties has been ongoing since the filing of Alpine I and involves claims that should have been asserted in that matter. Alpine II commenced even before the supreme court denied writs as to the Alpine I judgment and was prompted by Black’s October 29, 2009, demand letter threatening foreclosure and demanding a share of the Wink-lers’ lease bonus and royalty interest. Considering the continual litigation between the parties and that the matter was apparently before different trial judges before it was finally heard, we do not find that the Winklers abandoned their motion for sanctions. We agree with the Wink-lers’ argument that concepts of abandonment and prescription apply to actions, not a motion for sanctions under La. C.C.P. art. 863, which can be imposed by the trial court in the absence of any motion by a party.

As exhaustively discussed, the trial court’s reasons for imposing sanctions show that it found the sanctionable conduct to be particularly egregious. We do recognize that this matter involved an unusual delay between the offending conduct and the imposition of sanctions. However, the seriousness of the sanctionable conduct found by the trial court demanded that the matter be addressed. For these reasons, we deny the exception and motion for dismissal filed by Alpine Meadows on appeal.

Finally, Alpine Meadows argues that the trial court erred in dismissing the Winklers’ Alpine II suit for malicious prosecution without ^prejudice. Alpine Meadows argues that the dismissal without prejudice and the granting of the motion for sanctions allows the Winklers to split their cause of action for malicious prosecution. We review the trial court’s decision to dismiss a case with or without prejudice pursuant to an abuse of discretion and manifest error standard. Richardson v. O’Neal, 30,599 (La.App.2d Cir.5/13/98), 716 So.2d 26, citing Archer v. Tudor Const. Co., 94-850 (La.App. 3d Cir.2/15/95), 649 So.2d 1251. We find no merit to the argument that the dismissal improperly allows the Winklers to split their cause of action against Alpine Meadows. The motion for sanctions is not a private cause of action, but rather a tool used by the trial court to remedy litigation abuse. The trial court determined to dismiss the malicious prosecution action without prejudice in light of its decision to impose sanctions. We detect no manifest error or abuse of discretion by the trial court in this regard.

CONCLUSION

For the reasons explained, we reverse that part of the trial court’s judgment denying the Winklers’ exception of res ju-dicata filed in response to Alpine Meadows’ reconventional demand in Alpine II. In all other respects, the judgment is affirmed. Costs of these consolidated appeals are assessed against Alpine Meadows and Garry Black.

REVERSED IN PART; AFFIRMED IN PART.

APPLICATION FOR REHEARING

Before STEWART, DREW, MOORE, LOLLEY and PITMAN, JJ.

| ¶ Rehearing denied.

      . In 2007, the parties signed both the Allonge and an "Amendment and Act of Correction to the Credit Sale.” These documents will be referred to together as the "Allonge.”

      . Alpine Meadows’ claims that the pipeline and drilling of the well threaten to damage or "waste” the golf course property ring hollow in light of Black’s demands that the Winklers pay him a share of their lease bonus and assign a portion of their royalty interest to him. It seems clear that Alpine Meadows, since learning of the mineral lease, has been acting to wrest the property from the Wink-lers in order to reap the benefit of the mineral rights made valuable by the Haynesville Shale discovery.

      . The Winklers’ motion for sanctions was not directed at Black, individually. The motion for sanctions filed on July 14, 2008, was directed against Alpine Meadows and Adams. At the March 26, 2013, hearing, the Winklers indicated that they would reserve their motion for sanctions against Adams for another time. However, considering that a full hearing was conducted on the motion for sane-tions and that both Adams and Black testified, the reservation of sanctions against Adams appears as an improper attempt to piecemeal the issue. We note that under Article 863(D), the court on its own motion could have imposed sanctions against Adams and /or Black but did not. Thus, the issue of sanctions stemming from Alpine I appears to have been fully addressed.

      . In Alpine Meadows, supra, we determined that Mrs. Winkler’s “signature on the Allonge was immaterial, because [Mr. Winkler] alone could bind the community." Id., p. 5, 17 So.3d at 1031.

      . La. Const. Art. I, § 23 states, "No bill of attainder, ex post facto law or law impairing the obligation of contracts shall be enacted.”

      . Because Article 863 is derived from Rule 11, our courts have looked to federal jurisprudence applying Rule 11 for guidance when interpreting and applying Article 863. Connelly v. Lee, 96-1213 (La.App. 1st Cir.5/9/97), 699 So.2d 411, writ denied, 97-2825 (La. 1/30/98), 709 So.2d 710.

      . Federal courts have imposed the harshest of sanctions, dismissal of a lawsuit, for Rule 11 violations where the party exhibited dishonesty or fraudulent conduct. In Jimenez v. Madison Area Technical College, 321 F.3d 652 (7th Cir.2003), the court dismissed Jimenez's discrimination claims which were based on falsified evidence. A dismissal with prejudice and $30,000 in attorney fees and expenses was imposed in Peerless Indus. Paint Coatings Co. v. Canam Steel Corp., 979 F.2d 685 (8th Cir. 1992), where the plaintiff’s claim was based on a falsified letter and factual misstatements.

      . In Keaty v. Raspanti, 2003-1080 (La.App. 4th Cir.2/4/04), 866 So.2d 1045, writs denied, 2004-0941 (La.6/18/04), 876 So.2d 806 and 2004-0947 (La.6/18/04), 876 So.2d 807, the appellate court increased the sanctions awarded for an Article 863 violation from $34,605.08 to $107,605.95 for pursuing an unfounded action. The sanction was intended to punish conduct the court found to be "deliberate, knowingly without any foundation and crafted for the sole purpose of harassment.” The same could be said in this matter, where Alpine Meadows deliberately filed Alpine I without any foundation inasmuch as it was based on a note that had been restructured and where it was crafted solely to harass the Winklers into giving up the property.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    Jan AILLET and Marilyn Doucet v. LAFAYETTE PARISH SCHOOL BOARD.
    No. 14-585.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2014.
    Rehearing Denied Jan. 28, 2015.

      Jon Keith Guice, Linda Kay Ewbank, Hammonds, Sills, Adkins, & Guice, L.L.P., Monroe, LA, for Defendant/Appellant, Lafayette Parish School Board.
    Andrew J. Halverson, Milling Benson Woodward, L.L.P., Lafayette, LA, for Plaintiffs/Appellees, Jan Aillet Marilyn Doucet.
    Court composed of SHANNON J. GREMILLION, PHYLLIS M. KEATY, and JOHN E. CONERY, Judges.
   GREMILLION, Judge.

|,In this teachers’ salary and back-pay dispute, the Lafayette Parish School Board (LPSB) appeals the grant of the Motion for Summary Judgment filed by the plaintiffs/appellees, Jan Aillet and Marilyn Dou-cet. For the reasons that follow, we affirm.

FACTS

The facts of this matter are not disputed. The school board chartered Charter High School (Charter). Charter was a school that held session from 2:00 to 9:00 p.m. and catered to extremely at-risk students, many with children, some homeless. In 2006, Mrs. Aillet began working at Charter half-time as a librarian, except during summers, when she worked at Charter full-time. She continued to work there half-time until 2010, when she began working there full-time following the closure of the other school at which she worked half-time. Her compensation at Charter was based upon a 244-day school year for which she was paid $328.29 per day.

Mrs. Doucet moved to the Lafayette Parish School System in 2005 after many years teaching English in the Avoyelles Parish Schools. She began at Charter upon moving to the Lafayette System. Her compensation was based upon a 244-day school year as well, earning $298.08 per day.

Charter, though, was closed by the school board in 2012. The faculty and staff were informed of this change in meetings with' school board personnel. Mrs. Aillet was reassigned from Charter to Lafayette High School (LHS). Her compensation there was based upon a 182-day school year at $330.85 per day. Mrs. Dou-cet, who was reassigned to N.P. Moss Preparatory, began being | ^compensated on the same basis at $308.30 per day. Both filed suit against the school board and asked for back pay and reinstatement of their 2011 salaries.

Both sides of the dispute filed motions for summary judgment. Both motions relied upon the same three exhibits: the depositions of Mrs. Aillet and Mrs. Doucet and the affidavit of Mr. Bruce Leininger, the LPSB Director of Human Resources. The trial court heard argument in this matter and ruled in favor of Mrs. Aillet and Mrs. Doucet. LPSB was ordered to reinstate their 2011-2012 salaries and pay back-pay retroactive to the beginning of the 2012-3013 school year.

LPSB assigns the following as errors:

A. The district court erred by finding that Appellant’s actions were a violation of Louisiana Tenure Law (and Louisiana Revised Statutes 17:418) thereby entitling [Appellees] to pay for months not worked.
B. The district court erred by rendering a judgment, the effect of which violates the Article 7, Section 14 of the Louisiana Constitution’s prohibition against the donation of public funds.

DISCUSSION

Because this matter comes before us on summary judgment, we will briefly review the standards we, as an appellate court, are to employ:

Courts of appeal review summary judgments de novo applying the same analysis as the trial court. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342 (La.1991). Summary judgment is governed by La.Code Civ.P. arts. 966 and 967. Article 966 provides that while the burden of proving entitlement to summary judgment rests with the mover, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden does not require him to negate all essential elements of the adverse party’s claim, action or defense, but rather to point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606.

1 Berard v. Home State County Mut. Ins. Co., 11-1372, p. 2 (La.App. 3 Cir. 5/9/12), 89 So.3d 470, 471-72.

The laws governing teacher tenure are found in Title 17 of the Louisiana Revised Statutes. Mrs. Aillet and Mrs. Doucet maintain that the school board violated La.R.S. 17:418(0(1) by reducing their salaries. LPSB maintains that the salaries are subject to reduction by virtue of La.R.S. 17:444.

Louisiana Revised Statute 17:418(0(1) provides:

C. (1) The amount of the annual salary paid to a teacher or other school employee in any school year shall not be reduced below the amount of such salary paid during the previous school year, nor shall the amount of the annual salary paid to such school personnel be reduced at any time during an academic year.

Thus, according to the appellees’ argument, their salaries could not be reduced from their salaries in 2011.

Louisiana Revised Statute 17:444 provides, in pertinent part:

B. (1) Whenever a teacher who has acquired tenure, as set forth in R.S. 17:442, in a local public school system or the special school district is promoted by the superintendent by moving such teacher from a position of lower salary to one of higher salary, such teacher shall not be eligible to earn tenure in the position to which he is promoted, but shall retain any tenure acquired as a teacher, pursuant to R.S. 17:442.

LPSB argues that the pay of the appellees can be reduced because they had acquired tenure at lower salaries and are therefore not eligible for tenure at the higher-salaried positions.

This situation poses a serious conflict between two statutes. ‘Words and phrases shall be read in context and shall be construed according to the common and approved usage of the language.” La.R.S. 1:3. “Laws on the same subject [4matter must be interpreted in reference to each other.” La.Civ.Code art. 13. When possible, laws that conflict should be construed together to. harmonize them. Killeen v. Jenkins, 98-2675 (La.11/5/99), 752 So.2d 146. We are also mindful of the principle that a statute that specifically covers a subject take precedence over one that generally applies. Delahoussaye v. Thibodeaux, 498 So.2d 1137 (La.App. 3 Cir.1986), writ denied, 501 So.2d 236 (La. 1987).

LPSB cites two cases for the court to consider. In Kemp v. Jefferson Parish School Board, 305 So.2d 744 (La.App. 4 Cir.1974), tvrit denied, 309 So.2d 346 (La. 1975), the school board reduced the salaries and working hours of several principals and assistant principals. The plaintiffs, who had been adversely affected by this reduction and the concomitant reductions in salary, sought reinstatement. The fourth circuit held, based on its earlier ruling in Mouras v. Jefferson Parish School Board, 300 So.2d 540 (La.App. 4 Cir.), writ denied, 302 So.2d 619 (La.1974), that this action did not violate the teachers’ tenure laws.

The problem with Kemp and Mouras is that those cases relied on earlier versions of both the teachers’ salary law and teachers’ tenure law. The statutes governing teacher pay, which had formerly been scattered among several sections of Title 17, was amended by 2012 Louisiana Acts No. 1, effective July 1, 2012, after the appel-lees’ causes of action arose, and redesig-nated them as La.R.S. 17:418. The act also comprehensively restructured the concept of teachers’ tenure. Particularly in the context of teacher pay, the Mouras decision no longer comports with the statutory law applicable to this case, as it was based on two statutory provisions, La.R.S. 17:81 and La.R.S. 17:421. Section 81 provides for the general powers of local public school boards, including the right to hire teachers by the month or by the year and to fix their salaries. La.R.S. 17:81(A)(2). This provision | ¿was not changed by the 2012 act. Section 421 enacted a minimum salary schedule for teachers. That provision has been repealed and replaced with La.R.S. 17:418(A)(1), which places the onus of establishing a minimum salary schedule on the individual school board.

The fourth circuit reasoned, by virtue of these two provisions, that the reduction of the plaintiffs’ salaries was not inconsistent with the tenure laws. It went on to say, in dicta:

The tenure law might protect an individual teacher from board action which reduced only that one teacher’s pay, since such individual action could be an unwarranted disciplining. That, however, is not our case: here the entire categories of principals and assistant principals in high and middle schools have been reduced. (There is no suggestion that the board reduced all as a means of disciplining only one.)

Mouras, 300 So.2d at 541.

However, La.R.S. 17:418(C)(1), as we have previously pointed out and as Mrs. Aillet and Mrs. Doucet have argued, provides that a teacher’s salary cannot be reduced below her previous year’s, subject to certain exceptions. According to Section 418(C)(3):

The limitations on the reduction in the amount of the annual salary paid to teachers and other school employees shall not be applicable to:
(a)The correction of any accounting errors or to a reduction necessitated by the elimination of a state program or state funding.
(b) The reduction of any local salary supplement funded, in whole or in part, from a revenue source requiring voter approval when such voter approval has not been obtained.
(c) A teacher or other school employee who has been promoted to a position of higher salary is demoted in accordance with applicable law and local board or special school district policy to a lower position. In such case, the teacher or other school employee shall return to the salary previously received in the lower position from which he was promoted.

| fiLPSB’s argument rings hollow in Mrs. Doucet’s case, as her only position in the system — until the closure of Charter, that is — was a twelve-month post at Charter. Accordingly, her employment at Charter was not a promotion from a lower-paying position to a higher-paying one.

Also in play in this matter, though, is La.R.S. 17:444, entitled “Promotions to and employment into positions of higher salary and tenure.” This statute governs the relationship between the school system and employees, like Mrs. Aillet, who are promoted from lower-paying positions to higher-paying positions. Teachers who are so promoted cannot acquire tenure in the higher-paying position. However, the statute balances that ineligibility with certain safeguards. Such a promotion is subject to a contract term of not less than two years. La.R.S. 17:444(B) (4) (a) (i). Further, the school board and the teacher may enter into subsequent contracts, and the statute mandates that “[n]ot less than one hundred and twenty days prior to the termination of such a contract, the superintendent shall notify the employee of termination of employment under such contract, or in lieu thereof the board and the employer [sic.] may negotiate and enter into a contract for subsequent employment.” La.R.S. 17:444(B)(4)(c)(i). No such notice was given to Mrs. Aillet, who was promoted from a lower-paying position to a higher one. Additionally, this court has previously held that a teacher so promoted, according to the dictates of Section 444(B)(4)(a)(i) is entitled to a renewal of her contracts for not less than two years, entitling her to mandamus relief should the school board choose to renew her contract for a shorter term. See Julian-Robinson v. Lafayette Parish School Bd., 11-712 (La.App. 3 Cir. 11/2/11), 76 So.3d 656, writ denied, 11-2643 (La.2/10/12), 80 So.3d 479. Section 444 is intended to 17protect teachers from exactly the sort of actions taken by the LPSB in this case. Accordingly, we find no merit in this assignment of error.

The board also argues that the trial court’s order violates the Louisiana Constitution, Article VII, Section 14, which reads:

Section 14. (A) Prohibited Uses. Except as otherwise provided by this constitution, the funds, credit, property, or things of value of the state or of any political subdivision shall not be loaned, pledged, or donated to or for any person, association, or corporation, public or private. Except as otherwise provided in this Section, neither the state nor a political subdivision shall subscribe to or purchase the stock of a corporation or association or for any private enterprise.

The purpose of this provision is to end the old practice of the legislature to pledge state credit to aid private enterprise, and “to protect the electorate from the possibility that a politically powerful individual or interest could importune the legislature or other governmental entity into making a donation of assets of the State.” In re Members of Class of Descendants of Former Owners of Cheniere Ronqillo, 01-1548, p. 4 (La.App. 4 Cir. 4/24/02), 817 So.2d 324, 327, unit denied, 02-1448 (La.9/20/02), 825 So.2d 1170, and writ denied, 02-1454 (La.9/20/02), 825 So.2d 1171; Caldwell Bros. v. Bd. of Sup’rs of La. State Univ. and Agric. and Mech. Coll., 176 La. 825, 147 So. 5 (1933).

The school board cites for authority the case of Vanado v. Hospital Serv. Dist. No. 1 of the Parish of Assumption, State of Louisiana, 98-468 (La.App. 1 Cir. 4/1/99), 730 So.2d 1066. In Vanado, Assumption General Hospital entered into a contract with the plaintiff for services as a psychiatric nursing consultant and as hospital administrator, for which he was to be compensated at $76,000.00 per year plus thirteen percent of total revenues generated in excess of the revenue receipts. The Hospital Service District, which took over the operation of the hospital, ^terminated plaintiffs employment. Plaintiff sued for recovery of the thirteen-percent bonus. The court of appeal held that this:

was not based upon the services provided only by plaintiff, but the increased revenues were based upon the performance of other individuals in the entire hospital. In addition, this compensation was for the normal duties plaintiffs salary contractually required him to complete; no extra duties beyond his regular duties were required. Therefore, the revenue-enhancement compensation was a bonus payment, which is specifically prohibited under Constitution article VII, section 14(A).

Id. at 1068.

LPSB also cites Louisiana Attorney General opinions that opined that pay to school board employees for work not actually performed and to bus drivers for miles they did not actually drive violated the state constitution. See La. Atty. Gen. Op. Nos. 05-0448 and 39-1994. Thus, to compensate the plaintiffs on a twelve-month basis for nine months’ work is prohibited by Louisiana Constitution Art. VII, § 14.

We reject LPSB’s interpretation of Art. VII, § 14. Taken to its logical extreme, such an interpretation would invalidate La. R.S. 17:444 in its entirety. This argument stands wholly upon the board’s definition of the appellees’ compensation being based upon nine months’ work. Conversely, if the argument is framed in terms of the appellees’ salary, as specified in La.R.S. 17:444, or “annual salary” as specified in La.R.S. 17:418, the board’s argument that appellees failed to earn their contractually-agreed salaries falls. No question has been raised about appellees having performed at any level less than LPSB demanded under their contracts.

This assignment of error is without merit.

|flLafayette Parish School Board’s assignments of error are rejected. The judgment of the trial court is affirmed. All costs of this appeal, in the amount of $842.64, are taxed to defendant/appellant, Lafayette Parish School Board.

AFFIRMED.

      . Added by 2012 Louisiana Acts No. 1, effective July 1, 2012.

      . Amended by 2012 Louisiana Acts No. 1, effective July 1, 2012.


author: PETERS, J.

text:
    Ricky J. MATTE, et al. v. Robert BROWN, et al.
    No. 14-644.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2014.

      Thomas A. Thomassie, IV, Domengeaux Wright Roy & Edwards, LLC, Lafayette, LA, for Defendants/Third-Party Plaintiffs/Appellants, Robert Brown, Doris Brown, Samuel Brown.
    David J. Ayo, Allen & Gooch, a Law Corporation, Lafayette, LA, for Third-Party Defendants/Appellees, Paul E. Brown, Paul E. Brown, Attorney at Law, LLC.
    Bruce A. Gaudin, Opelousas, LA, for Plaintiffs/Appellees, Ricky J. Matte, Larry Joseph Matte, James Terry Matte, Charles Kenneth Matte, Jeanelfía Brown Matte.
    John H. Pucheu, Pucheu, Pucheu & Robinson, LLP, Eunice, LA, for Defendant/Appellee, Dorris Lynn Fontenot.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   PETERS, J.

| Robert Brown, Doris Brown, and Samuel Brown (hereinafter sometimes referred to as “the Browns”) appeal a trial court judgment granting summary judgment in favor of Paul E. Brown (Paul Brown) and Paul E. Brown, Attorney at Law, LLC (Brown LLC), dismissing their demands for damages. For the following reasons, we affirm the trial court judgment.

DISCUSSION OF THE RECORD

The issue before us involves the execution of a cash sale deed on November 9, 2006, wherein Louis Merhige sold Robert and Doris Brown, who are husband and wife, a 2.22 acre tract of land located in Section 30, Township 6 South, Range 2 East of St. Landry Parish, Louisiana. Paul Brown, who is a Eunice, Louisiana attorney and the nephew of Robert Brown, acted as the notary public in the execution of that cash sale deed, and the property description contained in the deed was derived from an August 26, 2006 survey plat prepared by Ryan J. Fuselier, a land surveyor. The survey plat had been prepared by Mr. Fuselier for Samuel Brown, the son of Robert and Doris Brown; was referenced in the property description contained in the cash sale deed; and a copy was attached to, and made a part of, the document. At some point later, Samuel Brown moved a structure onto a part of the 2.22 acres.

This property transaction gave rise to ah April 11, 2007 petitory action filed against the Browns by five landowners, who claimed in their petition that the 2.22 acre tract of land acquired by the Browns was located within a 4.44 acre tract of | gland owned by them. The landowners further asserted in their petitory action that they and their ancestors in title had enjoyed uninterrupted possession of the 4.44 acres since 1928.

Paul Brown and Brown LLC initially represented the Browns in the petitory action, but withdrew as their counsel of record on May 22, 2008. The pleadings giving rise to the issue now before us arise in the form of third-party demands against Paul Brown and Brown LLC, which were incorporated into the answers filed by the Browns in response to the landowners’ pleadings. The basic assertion in the third-party demand filed by Robert and Doris Brown is that Paul Brown and Brown LLC are liable to them in damages because they relied on his legal advice in purchasing the property and in placing a structure on the property. Samuel Brown’s third-party demand asserted that Paul Brown and Brown LLC were liable to him in damages for the same legal advice given to his parents.

On July 29, 2010, the trial court executed a judgment dismissing the landowners’ principal demand against the Browns based on a compromise agreement entered into by the litigants. However, the litigants did not file a copy of the compromise in the record.

Paul Brown and Brown LLC responded to the third-party demands and filed two unsuccessful motions for summary judgment before filing the motion now before this court. On January 16, 2014, Paul Brown and Brown LLC filed the Issummary judgment motion now before us. In that motion, they asserted that the Browns’ third-party demands should be dismissed because they have failed to pursue their claims against Louis Merhige for warranty of title as provided for in the cash sale deed. The summary judgment motion was heard on February 21, 2014, and the trial court took the issue under advisement. On March 17, 2014, the trial court issued written reasons for judgment granting the motion for summary judgment and dismissing all of the Browns’ third-party claims against Paul Brown and Brown LLC. The trial court executed a judgment to that effect on March 5, 2014, and thereafter, the Browns perfected this appeal.

In their appeal, the Browns raise two assignments of error:

1. The lower Court erred when it determined that a buyer must sue a seller in warranty, otherwise the buyer is legally prohibited from recovering in a legal malpractice action.
2. The lower Court erred when it granted the Motion for Summary Judgment, effectively dismissing the case, rather treating than it [sic] as an untimely exception of prematurity or the exception of nonjoinder of a party under Articles 641 and 642.

OPINION

The appellate review of summary judgment is well settled. Bourque v. Transit Mix, 13-1390 (La.App. 3 Cir. 5/7/14), — So.3d -. “Appellate review of the granting of a motion for summary judgment is de novo, using the identical criteria that govern the trial court’s consideration of whether summary judgment is appropriate.” Smitko v. Gulf S. Shrimp, Inc., 11-2566, p. 7 (La.7/2/12), 94 So.3d 750, 755.

14Although amended multiple times in the last three years, summary judgment proceedings are still favored and are “designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969.” La. Code Civ.P. art. 966(A)(2). That article further provides:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. If the motion for summary judgment is denied, the court should provide reasons for the denial on the record, either orally upon rendition or in writing sua sponte or upon request of a party within ten days of rendition.

La.Code Civ.P. art. 966(B)(2).

Moreover, the burden of proof remains the same:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

La.Code Civ.P. art. 966(C)(2).

The most significant change to summary judgment procedure relates to the requirements of proof. Louisiana Code of Civil Procedure Article 966(F) (emphasis added) now provides:

(1) A summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time.
(2) Evidence cited in and attached to the motion for summary judgment or memorandum filed by an adverse party is deemed admitted for purposes of the motion for summary judgment unless excluded in response to an objection made in accordance with | fiSubparagraph (3) of this Paragraph. Only evidence admitted for purposes of the motion for summary judgment may be considered by the court in its ruling on the motion.
(8) Objections to evidence in support of or in opposition to a motion for summary judgment may be raised in memorandum or written motion to strike stating the specific grounds therefor.

With regard to the elements of proof in a legal malpractice action, the supreme court stated the following in Costello v. Hardy, 03-1146, pp. 9-10 (La.1/21/04), 864 So.2d 129, 138:

To establish a claim for legal malpractice, a plaintiff must prove: 1) the existence of an attorney-client relationship; 2) negligent representation by the attorney; and 3) loss caused by that negligence. Finkelstein v. Collier, 636 So.2d 1053, 1058 (La.App. 5 Cir.1994); Barnett v. Sethi, 608 So.2d 1011, 1014 (La.App. 4 Cir.1992), units denied, 613 So.2d 993, 994 (La.1993). A plaintiff can have no greater rights against attorneys for the negligent handling of a claim than are available in the underlying claim. See, e.g., Spellman v. Bizal, 99-0723, p. 11 (La.App. 4 Cir. 3/1/00), 755 So.2d 1013, 1019; Couture v. Guillory, 97-2796, p. 7 (La.App. 4 Cir. 4/15/98), 713 So.2d. 528, 532, writ denied, 98-1323 (La.6/26/98), 719 So.2d 1287.

In their January 16, 2014 motion for summary judgment, Paul Brown and Brown LLC do not address whether there existed an attorney-client relationship between Paul Brown and the Browns, nor do they, address the negligence issues. Instead, they argue that even assuming the first two elements of the Costello analysis exists, the Browns cannot be successful in establishing that they suffered a loss from Paul Brown’s negligence. In their motion for summary judgment, they identify the issue to be determined by the trial court as follows:

[T]he Third Party Demands against Paul Brown must be dismissed because the Browns have a right and obligation to call in their warranty against Mer-hige. Louisiana law does not permit a legal malpractice claim against an attorney when the claimant has otherwise viable and extant rights.

Thus, as required by La.Code Civ.P. art. 966(F)(1), the trial court’s consideration of the summary judgment was limited to this issue. Additionally, they attached a | ficopy of the November 9, 2006 cash sale deed and survey plat to their motion and cited to that document in both their motion and memorandum in support of the motion. The Browns did not object to that exhibit, and it is “deemed admitted for the purposes of the motion for summary judgment” without further action on the part of Paul Brown and Brown LLC. La.Code Civ.P. art. 966(F)(2).

The cash sale deed specifically provides that Louis Merhige sold the 2.22 acres to Robert and Doris Brown “under all lawful warranties and with substitution and subrogation to all rights and actions of warranty against all preceding owners and vendors[.]” It further provides that “all the obligations herein assumed shall inure to the benefit of and be binding upon the heirs, successors and assigns of the respective parties hereto.” Although the cash sale deed clearly establishes that Paul Brown was the notary public who executed the document, it also contains very specific language relative to the notary public’s obligations with regard to its preparation and execution. Specifically, it provides:

The description included herein has been provided by one or all of the parties hereto to Notary and Notary has been instructed to use same. Notary has performed no research as to correctness of said description, was not asked to do so, and makes no representation in that regard. Notary is hereby relieved of any obligations or liability in connection with said description.

Furthermore, it provides:

Appearers recognized that, except to the extent separately certified in writing, no title examination of said property has been performed by the undersigned Notary for any parties hereto.

While the Browns’ claims for legal malpractice assert that Paul Brown gave them erroneous legal advice, their assertions in that regard relate to the erroneous property description contained in the November 9, 2006 cash sale deed.

As discussed by the first circuit in Leonard v. Reeves, 11-1009, pp. 17-18 (La.App. 1 Cir. 1/12/12), 82 So.3d 1250, 1626:

17Attorneys are obligated to scrutinize any contract that they advise their clients to execute, and are required to disclose the full import of the agreement and the possible consequences that may arise .upon execution of it. Ramp [v. St. Paul Fire & Marine, Ins. Co.], 263 La. [774,] 786, 269 So.2d [239,] 244. Conversely, while a client certainly has the right to rely upon the informed advice of his attorney, an attorney has the reciprocal right to expect accurate and complete information from his client in for-mutating such advice and presenting his client’s case. See, e.g., Brown v. Sanders, 06-1171, p. 5 (La.App. 1st Cir.3/23/07), 960 So.2d 931, 935.

In its reasons for judgment, the trial court noted that the entire record was introduced into evidence. However, with regard to the Browns, it particularly noted “their failure to offer any evidence to establish the existence of a writing requiring the notary public on the cash sale deed to perform a title examination; their failure to offer any evidence to establish the particulars of the compromise with the landowners; and their failure to provide evidence relative to any warranty action against Louis Merhige.”

In summarizing its ruling, the trial court first concluded that the failure of the Browns to reserve their third-party rights against Paul Brown and Brown LLC in the compromise agreement with the landowners adversely affected and impacted their ability to recover from Paul Brown and Brown LLC. We find that conclusion to be in error as La.Code Civ.P. art. 1039 provides, “If an incidental demand has been pleaded prior to motion by plaintiff in the principal action to dismiss the principal action, a subsequent dismissal thereof shall not in any way affect the incidental action, which must be tried and decided independently of the principal action.”

IsHowever, the trial court then recognized the three requirements of proof in a legal malpractice claim and concluded that the summary judgment could not be based on the first two as they remained in dispute. The trial court then addressed the issue squarely before it and summarized that issue as follows:

The Court found that based upon the case of Costello versus Hardy, 2003-1146 (La.1/21/08), 864 So.2d 129, as well as the language of the deed whereby the original defendants/third party plaintiffs had acquired that property that the third party plaintiffs failed to produce factual support sufficient to establish that they would be able to satisfy the evidentiary burden of proof as to the element of causation at trial.
The Court accepted the prior jurisprudence concerning that original defendants/third party plaintiffs’ causes of action and warranty against their vendor (Richmond versus Zapata Development Corp., 350 So.2d 875, 878-89 (La.1977)) and failing to pursue the warranty against the third party petitioner’s vendor that the third party claimants herein will not be able to carry their evidentia-ry burden of proving that it was the actions of the third party defendant, Paul Brown, that caused them damages in this matter and therefore granted the summary judgment.

The Browns argue on appeal that the trial court erred in concluding that they must seek relief in warranty from Louis Merhige before pursuing Paul Brown and Brown LLC for damages, and that it erred in granting a dismissal of their action for damages instead of considering the summary judgment motion as a dilatory exception of prematurity under La.Code Civ.P. art. 926(A)(1) or as a peremptory exception of nonjoinder of a party under La.Code Civ.P. art. 927(A)(4).

We find no merit in either of these assignments of error. Paul Brown and Brown LLC established by the evidence introduced in support of their motion for summary judgment that the Browns clearly had a warranty claim against Louis Merhige and, therefore, could collect their damages from him. Because the Browns would bear the burden of proof at the trial on the merits, the burden shifted to them “to produce factual support sufficient to establish that [they] will be able to | Ssatisfy [their] evidentiary burden of proof at trial[.]” La.Code Civ.P. art. 966(C)(2). The Browns produced no evidence to overcome that burden. Following the decision in Costello, 864 So.2d 129, the trial court granted summary judgment. We find no error in that judgment.

With regard to the second assignment of error, we note that this litigation has been pending since the landowners filed their suit in April of 2007. While Paul Brown and Brown LLC could have pursued this issue through the filing of exceptions, they choose to pursue dismissal through the summary-judgment process. That is their choice. At the same time, the Browns have had all of these years to protect their warranty rights but, for whatever reasons, chose not to do so. Accordingly, we find no merit in their second assignment of error.

DISPOSITION

For the foregoing reasons, we affirm the trial court’s grant of summary judgment in favor of Paul E. Brown and Paul E. Brown, Attorney at Law, LLC, dismissing the claims of Robert Brown, Doris Brown, and Samuel Brown against them. We assess all costs of this appeal to Robert Brown, Doris Brown, and Samuel Brown.

AFFIRMED.

      . Robert Brown and Doris Brown were initially named as defendants by the landowners. However, the landowners later supplemented their petition to add Samuel Brown as an additional defendant.

      . Ricky J. Matte, Larry Joseph Matte, James Terry Matte, Charles Kenneth Matte, and Jeanelfia Brown Matte are the plaintiffs in the petitiory action.

      . When Paul Brown represented the Browns, the pleadings filed were in all three names. However, after Paul Brown withdrew as counsel of record, Robert and Doris Brown responded to the litigation together and Samuel Brown filed separate pleadings in his name.

      . In the first summary judgment motion filed March 11, 2010, Paul Brown and Brown LLC sought to have the third-party demands dismissed based on the peremption provisions of La.R.S. 9:5605. The trial court rejected this motion by a judgment executed May 14, 2012, and this court denied their application for supervisory writs in an unpublished opinion rendered on September 18, 2012. Matte v. Brown, 12-609 (La.App. 3 Cir. 9/18/12). By the time the second summary judgment was filed on October 16, 2012, the Browns had settled with the landowners, and in that motion, Paul Brown and Brown LLC sought to have the third-party demands dismissed because of this settlement. The trial court rejected this motion by a judgment executed November 17, 2012, and this court again denied their application for supervisory writs in an unpublished opinion rendered on April 4, 2013. Matte v. Brown, 12-1378 (La.App. 3 Cir. 4/2/13).

      . While the record now before us contains a supplemental memorandum filed by Paul Brown and Brown LLC, which purports to "reply to the opposition of [the Browns] to Paul Brown's motion for summary judgment[,]” the record before us does not contain any opposition pleading filed by the Browns. Additionally, the record before us does not contain a transcript of the hearing on the motion for summary judgment, although, in its reasons for judgment, the trial court specifically discussed the content of the cash sale deed. Finally, we note that regardless of whether the "entire record” was introduced into evidence, the only evidence that can be considered by the trial court in a summary judgment proceeding are those particular documents designated in La.Code Civ.P. art. 966(A)(2).