author: MADELEINE M. LANDRIEU, Judge. LOVE, J.,

text:
    Herbert C. WELLMAN, Jr. and Craig E. Collier v. Mohammad TUFAIL.
    No. 2012-CA-1173.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 2014.
    Rehearing Denied March 12, 2014.

      Wayne A. Collier, Attorney at Law, Sli-dell, LA, for Plaintiff/Appellant.
    Gregory P. Nichols, Law Office of Gregory P. Nichols, L.L.C., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge MADELEINE M. LANDRIEU).
   MADELEINE M. LANDRIEU, Judge.

|! This appeal arises from a dispute between the plaintiffs, Herbert C. Wellman, Jr. and Craig E. Collier (‘Wellman/Col-lier”), and the defendant, Mr. Mohammad Tufail, over the sale of stock of a corporation. The principal asset of the corporation was a lease of commercial property on Decatur Street in the French Quarter, out of which the corporation operated a specialty food store. The lessor/landlord of the Decatur Street property was the French Market Corporation (“FMC”); the lessee/tenant was the corporation, Cookery N’Orleans Style, Ltd. (“Cookery”).

Soon after the sale of the stock from Mr. Wellman/Mr. Collier to Mr. Tufail, the FMC alleged that the sale was a violation of the lease agreement between it and Cookery. This litigation between Mr. Wellman/ Mr. Collier and Mr. Tufail ensued.

The current appeal arises from two separate judgments: The first judgment was rendered on February 6, 2012 after the trial court heard several motions, two |2of which were motions for summary judgment. The trial court designated this judgment as final pursuant to Louisiana Code of Civil Procedure article 1915(B). The second judgment was rendered on May 21, 2012 after a trial on the issue of damages. Mr. Wellman and Mr. Collier now appeal both judgments. For the reasons that follow, we find that there are no material facts in dispute. After a de novo review of the record, we reverse both judgments of the trial court.

FACTS AND PROCEEDINGS BELOW

Cookery was incorporated in 1977. At that time, it entered into a lease agreement with the FMC, an entity created by the New Orleans City Council to manage and administer the city-owned French Market. The lease agreement was for property located at 812 Decatur Street. This 1977 lease expired, and Cookery as Tenant and the FMC as Landlord entered into a second Amended and Restated Lease Agreement in 1997 for the same property, out of which Cookery continued to operate its store.

Two years after the 1997 lease became effective, the day-to-day manager of the store, Mrs. Elaine Collier, decided to retire. Mr. Wellman/Mr. Collier advertised for a new manager of the store, and Mr. Tufail responded.

In April of 1999, Mr. Wellman/Mr. Collier and Mr. Tufail negotiated and executed a document entitled “Management Agreement with Agreement to Purchase Stock Between Cookery N’Orleans Style, Ltd., Owner/Lessee and Mohammad Tu-fail, Manager” (“Management Agreement”). The Management Agreement, executed in the office of Mr. Tufail’s lawyer, was signed by all parties and witnessed by their attorneys. It included the parties’ agreement that Mr. |sTufail, in addition to managing the store, would purchase all the corporate stock of Cookery.

Prior to executing the Management Agreement, Mr. Wellman/Mr. Collier provided Mr. Tufail with copies of the 1977 and 1997 leases. Understanding the lease to be the principal asset of the corporation, Mr. Tufail hired counsel to discuss the proposed Management Agreement with the lessor, the FMC. After doing so, Mr. Tufail’s counsel, David Oestricher, advised Mr. Tufail that the FMC believed the lease prohibited the proposed Management Agreement. According to stipulated facts, the FMC advised Mr. Tufail that it would approve the Management Agreement between him and Mr. Wellman/Mr. Collier only if the agreement accorded the FMC the right to renegotiate the lease. Neither Mr. Tufail nor Mr. Wellman/Mr. Collier were willing to allow the FMC to renegotiate the lease, each believing that a renegotiated lease would be on terms less favorable to Cookery.

Mr. Tufail then retained new counsel, Mr. David Maraldo, who advised Mr. Tu-fail that, in his legal opinion, neither the proposed Management Agreement nor the proposed sale of the stock was prohibited by the lease. Satisfied with this advice, Mr. Tufail entered into the Management Agreement and proceeded with the stock purchase.

The Management Agreement, negotiated and prepared by Mr. Tufail’s counsel, provided that the principal object of the agreement was the management of the retail business operated by the corporation pursuant to the 1997 lease. The parties agreed on a purchase price of $215,000, payable by Mr. Tufail in the form of $100,000 cash plus a promissory note in favor of Mr. Wellman/Mr. Collier for the remainder. It was clearly understood between the parties that the lease was the |4primary asset of the corporation, with the corporeal assets of the business (merchandise and inventory) being valued at approximately $25,000.

An essential consideration in the negotiations between Mr. Wellman/Mr. Collier and Mr. Tufail was security for the promissory note. To that end, Mr. Tufail proposed and Mr. Wellman/Mr. Collier accepted a pledge of the stock of the corporation as security. Thus, the Management Agreement provided that in the event Mr. Tufail defaulted on the note, the stock of Cookery would revert to Mr. Wellman and Mr. Collier.

Finally, the Management Agreement provided: that a termination of the lease •without payment of the promissory note would be a breach of the agreement; that the removal of any property within the leased premises would be considered “an act of bad faith and immediate default without cure ... ”; and, that Mr. Tufail had an obligation to notify Mr. Well-man/Mr. Collier of any notice of default of the lease by the landlord. In the event of notice of default, the Management Agreement granted Mr. Wellman/ Mr. Collier the right to “cure for the corporation” any-alleged default.

The Management Agreement was executed on April 30, 1999 and became effective that day. Pursuant to its terms, Mr. Tufail immediately deposited $100,000, the cash portion of the purchase price, into his lawyer’s trust account. As a condition of the sale going through, Mr. Tufail’s attorney demanded that the lease between the FMC and Cookery be amended to correct an apparently inadvertent error in the corporate name of the lessee, Cookery. After the lease was so amended, Mr. Wellman and Mr. Collier transferred the stock certificates to Mr. Tufail, and Mr. Tufail authorized his attorney to tender to them the $100,000 he had been holding in escrow. Mr. Tufail then began paying the monthly | ¿installments on the promissory note as provided for in the Management Agreement.

Mr. Tufail paid on the note beginning in June of 1999 and continued paying through August of 2000. Even though the promissory note was a personal obligation of Mr. Tufail’s, each monthly installment was paid by check from the account of Cookery N’Orleans Style, Inc., with the last of the payments being made on August 1, 2000. The September installment was paid late and returned by Mr. Wellman/Mr. Collier. Prior to August, a few other payments had been made late, and Mr. Tufail had missed a few payments, as well. For instance, a check dated January 2000 had been returned by the bank for non-sufficient funds.

Following the receipt of the January, 2000 NSF check, Mr. Wellman and Mr. Collier, through their attorney, had sent a letter to Mr. Tufail advising him that they would no longer accept late payments on the promissory note and would pursue their rights on the note in the event future payments were not made in accordance with its terms.

By this time, the FMC, having learned about the existence of the Management Agreement, had notified Cookery that it was in default of its lease. In a letter to its lessee in November, 1999, the FMC gave notice that the sale of Cookery stock to Mr. Tufail had violated a particular provision of the lease, which the FMC believed prohibited Mr. Wellman/Mr. Collier from assigning and subletting Cookery’s rights in the lease. Mr. Wellman, Mr. Collier, and Mr. Tufail’s attorney all disagreed with the FMC’s interpretation of this provision of the lease.

IfiA. The Declaratory Judgment Action in Orleans Parish

As the Management Agreement granted to Mr. Wellman/Mr. Collier the right “to cure for the corporation” any default on the note, they filed a declaratory judgment action against the FMC in Civil District Court seeking to have the dispute over the lease properly adjudicated. That filing commenced this long and unconventional litigation.

Initially, Mr. Tufail agreed to join Mr. Wellman and Mr. Collier as a plaintiff in this litigation. However, he later decided to take a different approach. Notwithstanding the provisions in the Management Agreement between him and Mr. Wellman/Mr. Collier, Mr. Tufail entered into negotiations with the FMC that resulted in Mr. Tufail forming a new corporation, New Orleans Cooking, L.L.C., to which Mr. Tufail transferred all of the assets of Cookery. He then cancelled the lease between Cookery and the FMC and executed a new lease with the FMC in favor of the new company. On April 3, 2000, Mr. Tufail wrote a letter to the FMC in which he advised the FMC that Cookery “will have no ownership interests in either the lease or the trade name to operate the business.”

In a letter of August 31, 2000, addressed to “Mr. Mohammad Tufail, Cookery N’Orleans Style,” the Executive Director of the FMC advised Mr. Tufail that the “Board of Directors terminated the lease agreement of 812 Decatur Street effective August 30th and agreed to enter into a new lease with [Mr. Tufail’s new corporation] New, Orleans Cooking, L.L.C.” This new lease was for the same property and permitted the sale of essentially the same products. The new lease was signed on September 20, 2000, with an effective date of September 1, 2000.

Apparently because Mr. Tufail had not joined Mr. Wellman and Mr. Collier in the declaratory judgment action in Civil District Court seeking adjudication of |7the lease, the FMC filed an exception of no cause of action. By the time this exception came for hearing, the FMC had withdrawn its notice of default on the lease, had terminated its lease with Cookery, and had entered into a new lease for the same property with Mr. Tufail’s new corporation. Because the lease was no longer in effect, the trial court granted the exception of no cause of action and dismissed the suit with prejudice. No appeal was taken from the judgment granting the exception of no cause of action.

B. The Actions on the Note and for Breach of Contract in Jefferson Parish

In September of 2000, Mr. Wellman/Mr. Collier filed suit against Mr. Tufail in the Twenty-Fourth Judicial District Court for the Parish of Jefferson, Mr. Tufail’s domicile, alleging that Mr. Tufail had defaulted on the promissory note. Mr. Tufail answered, asserting that he had paid the September payment and that it had been returned to him. He further contended that Mr. Wellman/Mr. Collier’s acceptance of late payments in the past had reformed the terms of the note. In October of 2000, Mr. Tufail filed an amended answer in which he alleged that Mr. Wellman and Mr. Collier had known that the sale of their stock to him was a violation of the lease and that they had knowingly sold him a non-existent right.

Mr. Wellman/Mr. Collier then filed a second suit against Mr. Tufail and Cookery, seeking a temporary restraining order; a preliminary and permanent injunction; a declaratory judgment as to the terms of the new lease agreement between the FMC and Mr. Tufail’s new business entity, called “N.O. Style Cooking;” and money damages for breach of the Management Agreement due to |sMr. Tufail’s cancellation of the lease before the note was paid. These two Jefferson Parish suits were consolidated.

In the consolidated action, Mr. Tufail brought an exception of failure to join the FMC as a party. The trial court denied the exception and conducted a full trial on the merits on the claims between these parties.

After trial on the merits, the trial court rendered judgment in favor of Mr. Well-man/Mr. Collier, finding Mr. Tufail in default on the promissory note and ordering him to immediately pay the balance of the note, plus interest and attorney fees, failing which the plaintiffs would have the right to immediately seize the assets of the business. The judgment also held that the transfer of the management and ownership of Cookery from Mr. Wellman/Mr. Collier to Mr. Tufail was not a violation of the original lease between the FMC and Cookery. Finally, the trial court held that the second lease between N.O. Style Cooking and the FMC was null and void, and that whatever rights N.O. Style Cooking may have had in that new lease were now the property of Cookery. Mr. Tufail appealed that judgment to the Court of Appeal for the Fifth Circuit.

The Fifth Circuit vacated the judgment of the trial court, not on the merits, but on the ground that the trial court had erred by denying the defendants’ peremptory exception of nonjoinder of a party. The Fifth Circuit found that the FMC was “a party in interest” to the action pursuant to articles 641 and 642 of the Code of Civil Procedure. The appellate court therefore sustained the exception, vacated the judgment of the trial court, and remanded the matter for further proceedings.

|9On remand, after the FMC had been joined, the trial court granted the FMC’s exception of improper venue and transferred the case to the Civil District Court.

C. The Consolidated Actions After Transfer to Civil District Court

In Civil District Court, Mr. Tufail filed a reconventional demand against Mr. Well-man/Mr. Collier alleging breach of the Management Agreement, rescission, unfair trade practices and fraud. In 2012, the parties filed the cross-motions for summary judgment that form the basis of this appeal.

On February 6, 2012, the district court denied the motion for summary judgment filed by Mr. Wellman/Mr. Collier on the note and granted the motion for summary judgment filed by Mr. Tufail on his recon-ventional demand. As stated previously, the district court designated this judgment as final. Mr. Wellman/Mr. Collier timely moved for an appeal of this judgment. In the Order of Appeal, dated March 28, 2012, the trial court ordered that the proceedings not be stayed pending appeal.

Thereafter, beginning on April 11, 2012, the district court conducted a trial on damages. On May 21, 2012, the court rendered judgment in favor of Mr. Tufail, finding that Mr. Wellman/Mr. Collier had committed fraud because they knew or should have known that the sale of the Cookery stock would violate the lease. The court awarded Mr. Tufail damages in the following amounts: $98,665.13 for the cash down payment for the rescinded sale; $3,200.00 ■ for money garnished by Mr. Wellman/Mr. Collier from Mr. Tufail’s personal account at Whitney Bank; $7,732.43 for money garnished by Mr. Wellman/Mr. Collier from |inMr. Tufail’s personal account at First Bank; and $31,500.00 for attorney’s fees. The trial court additionally held that Mr. Tufail was not entitled to a return of the $18,000.00 he had paid on the promissory note because these payments had been made from the account of Cookery rather than from his personal funds. For the same reason, the trial court denied Mr. Tufail’s claim for damages allegedly caused by Mr. Wellman/Mr. Collier’s seizure of assets of the corporation pursuant to a writ of sequestration.

On June 12, 2012, Mr. Wellman/Mr. Collier obtained an Order of Appeal of the May 21, 2012 judgment. We now consider the appeals of the February 6, 2012 and the May 21, 2012 judgments together.

ISSUES

The issues raised by the parties are summarized as follows:

I. Whether the trial court erred in denying Wellman/Collier’s motion for summary judgment on the promissory note.
II. Whether the trial court erred in granting Mr. Tufail’s motion for summary judgment on his recon-ventional demand.
III. Whether the trial court erred by awarding damages to Mr. Tufail on his reconventional demand.
IV. Whether the trial court erred by refusing to order Mr. Tufail to pay the costs to the Clerk of Court of the 24th JDC to transfer the record.

[^STANDARD OF REVIEW

We review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Duncan v. U.S.A.A. Ins. Co., 2006-36S, p. 3 (La.11/29/06), 950 So.2d 544, 547. That is, we must determine whether there are any genuine issues of material fact and, if not, whether the mover is entitled to summary judgment as a matter of law. La. C.C.P. art. 966(C); Cressionnie v. Liberty Mutual Ins. Co., 98-0534, p. 3 (La.App. 4 Cir. 4/8/98), 711 So.2d 364, 366. Generally, material facts are those that potentially ensure or preclude recovery, affect the litigant’s ultimate success, or determine the outcome of a legal dispute. Safeway Ins. Co. of Louisiana v. Premier Automotive Superstore, 2009-0074, pp. 2-3 (La.App. 4 Cir. 5/27/09), 13 So.3d 236, 238. Despite the legislative mandate that summary judgments are favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 2000-2507, p. 2 (La.12/8/00), 775 So.2d 1049, 1050. A summary judgment may be rendered dispositive of a particular issue even though it does not dispose of the entire case. La. C.C.P. art. 966(E).

DISCUSSION

Issues I and II: Motions for Summary Judgment

We first address the denial of Mr. Well-man/Mr. Collier’s motion for summary judgment on the note and the granting of Mr. Tufail’s cross motion for summary judgment on his reconventional demand.

The motion for summary judgment filed by Mr. Wellman/Mr. Collier alleged that Mr. Tufail failed to pay the September 1, 2000 installment due on the promissory note and that, as holders of the note, they had the option to render the |12entire balance due and payable. Given the evidence presented in support of this motion and the undisputed facts discussed herein, we find that the trial court erred as a matter of law when it denied this motion for summary judgment.

In support of their motion for summary judgment, Mr. Wellman/Mr. Collier offered and the court accepted, without objection, the following exhibits into evidence: The Management Agreement and Agreement to Sell Stock; the promissory note; certain documents transferring the Cookery stock from Mr. Wellman/Mr. Collier to Mr. Tufail; the sworn testimony of Mr. Tufail admitting that the last payment he made on the promissory note was the August 2000 payment; copies of checks for thirteen payments (six of which were paid late or returned NSF); a January 26, 2000 letter making demand for the January 2000 payment and putting Mr. Tufail on notice that Mr. Wellman/Mr. Collier would consider future late payments a default of the Agreement; Stipulated Facts signed by counsel for both parties; a December 3, 1999 letter from David Maraldo to Mr. Tufail outlining his representation of Mr. Tufail and the basis for his legal advice that the sale of the corporate stock by Mr. Wellman/Mr. Collier to Mr. Tufail was not a breach of the lease with the FMC; the 1977 lease between Cookery and the FMC; the 1997 lease between the same parties; and affidavits of Mr. Collier and Mr. Well-man attesting that they had not received payment on the promissory note from September 2000 to date. This evidence set forth a prima facie case for judgment on the promissory note.

Accordingly, the burden shifted to Mr. Tufail to provide specific facts showing that there was a genuine issue for trial. See La. C.C.P. art. 967(B). To this end, Mr. Tufail asserted that the sale of the stock and the promissory note securing that sale were a part of the same transaction and could not be separated. 11sHe did not deny that he had failed to pay the promissory note or that he had terminated the lease between Cookery and the FMC. He claimed, however, that Mr. Wellman and Mr. Collier did not have the authority to sell to him their rights in the lease in the first place. Thus, he argued, he had not received any consideration for his promissory note. Essentially, Mr. Tufail argued before the trial court and now contends on appeal that the “cause” of both the promissory note and the Management Agreement was the lease, without which he would not have purchased the stock of Cookery. Therefore, since the FMC refused to honor the lease once Mr. Tufail became the owner of the stock, he had a right to rescind the sale and to vitiate the note and the Management Agreement on grounds of error and fraud. This same argument was the basis for Mr. Tufail’s cross motion for summary judgment on his reconventional demand.

In support of his argument, Mr. Tufail introduced the same documents introduced by Mr. Wellman/Mr. Collier, plus a few additional exhibits, namely: excerpts of the deposition of Stephen Hand (the executive director of the FMC at the time of the 1999 and 2000 leases); the notice of default sent by the FMC to Cookery; the September 1, 2000 lease between the FMC and N.O. Style Cooking; and Mr. Tufail’s own affidavit. This is the same evidence Mr. Tufail submitted to the trial court in connection with his cross motion for summary judgment.

We find that this evidence fails to establish a material issue of fact sufficient to defeat summary judgment on the promissory note and also fails to establish Mr. Tufail’s right to summary judgment on his reconventional demand. We note that Mr. Tufail was personally obligated on the promissory note, but all of the payments made on the note were drawn on the account of Cookery. When Mr. Tufail incorporated New Orleans Cooking, L.L.C. and began to operate the l14business as New Orleans Style Cooking, he transferred to it all the inventory of Cookery to the new company without compensating Cookery in any way. Had Mr. Tufail met his entire obligation on the promissory note, the debt would have been extinguished, and Mr. Wellman/Mr. Collier would have had no right to complain about the transfer of assets to a new corporation. However, the Management Agreement provided that the stock of Cookery was the security for the note and that the stock would revert to Mr. Wellman/Mr. Collier in the event of default. Therefore, by taking the assets from Cookery and placing them in another corporation, Mr. Tufail eliminated the security for the note.

The parties stipulated that Mr. Tufail made payments on the promissory note for thirteen months, paying late on a few occasions and missing a few payments. It is also undisputed that Mr. Tufail failed to make timely payments after August 2000; that he then terminated the lease between Cookery and the FMC; and that he transferred the assets of Cookery to a new corporation formed by him.

Because the Management Agreement provided that the stock of Cookery was the security for the note, when Mr. Tufail began depleting the assets of Cookery without having satisfied the note, he not only defaulted on the note, but also breached the Management Agreement. The Management Agreement further provided that terminating the lease prior to payment of the note in full, as Mr. Tufail did, would constitute a breach of the agreement. Accordingly, we find no genuine issue of material fact and conclude as a matter of law that Mr. Tufail defaulted on his obligation under the promissory note and violated the Management Agreement between himself and Mr. Wellman/Mr. Collier. | ^Therefore, the trial court erred by denying Mr. Wellman/Mr. Collier’s motion for summary judgment.

With regard to Mr. Tufail’s motion for partial summary judgment, we note that the parties clearly agreed that the principal asset of the business was the lease and that only $25,000 of the $215,000 purchase price covered the inventory and equipment. There is no dispute, therefore, that the “cause” of both the promissory note and the Management Agreement was the lease. Mr. Tufail thus argues that his consent to the Management Agreement was obtained through fraud or error because he did not know that the FMC would refuse to honor the lease, implying that Mr. Wellman/Mr. Collier deliberately concealed this fact from him. This argument is without merit.

Fraud is “a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other.” La. C.C. art. 1953. Fraud may result from silence or inaction. Id. Fraud does not vitiate consent when the party against whom the fraud was directed could have ascertained the truth without difficulty, inconvenience, or special skill. La. C.C. art. 1954.

Mr. Tufail makes two general allegations of fraud that warrant our consideration. The first concerns an affidavit Mr. Collier gave to the FMC to facilitate the correction of the corporate name of Cookery as it appeared in the 1997 lease prior to the sale of the stock. In that affidavit, Mr. Collier attested that |1fiCookery N’Orleans Style, Ltd. was the original tenant in 1977 and remained the tenant in 1997. He further attested that Cookery “had not changed ownership or management from the time the lease was executed until the date of the affidavit.” The affidavit was signed by Mr. Collier on May 19,1999.

Mr. Tufail alleges that this affidavit constituted an act of fraud because it misrepresented the truth to the FMC. His argument is without merit for two reasons. First, Mr. Collier’s affidavit is not false. Effective May 1, 1999, Mr. Tufail became the manager of the store, and he was in the process of purchasing the Cookery stock. Mr. Tufail confuses Cookery, the corporation, with Cookery, the store. At the time Mr. Collier executed the affidavit, Mr. Tufail was managing the store, but he had not yet purchased the corporate stock and had no management responsibilities over the corporation. The store had many managers over the years, Mrs. Collier being the last of these before Mr. Tufail. However, the ownership and management of the corporation did not change between the time the 1997 lease was executed and the time the affidavit was sworn. Second, this affidavit was prepared by Mr. Collier to satisfy a provision of the Management Agreement insisted upon by counsel for Mr. Tufail as a condition precedent to the sale of stock. Therefore, Mr. Tufail was well aware of the purpose and intent of the affidavit. To suggest that this affidavit establishes fraud is frivolous.

117The second allegation warranting discussion is Mr. Tufail’s claim that Mr. Well-man/Mr. Collier knowingly sold him a nonexistent right. That is, they sold him their rights in the lease when they knew that such a sale violated their lease with FMC. This claim is equally frivolous. The undisputed facts are that Mr. Tufail was provided a copy of both the 1977 and 1997 leases, consulted and/or retained two lawyers in connection with the stock transaction, and was aware of the FMC’s position before entering into the Management Agreement. He knew exactly what Mr. Wellman/Mr. Collier knew. This is not evidence of fraud.

Mr. Tufail alternatively argues his consent is negated by error. Error vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party. La. C.C. art. 1949. In the event of error, a contract can be rescinded. We find that there was no error sufficient to rescind the contract between these parties.

As addressed previously, there is no question that the “cause” of the sale of the stock was the ability to operate the ongoing business pursuant to the lease between Cookery and the FMC. As will be further explained, the Management Agreement did not violate the 1997 lease between Cookery and the FMC. Mr. Tufail violated the Management Agreement by allowing the cancellation of the lease prior to his having paid the note in full, by transferring the assets of Cookery to New Orleans Cooking, L.L.C., and by entering into a new lease for the same space without any compensation to Cookery or Mr. Wellman/Mr. Collier.

Cookery was a duly formed corporation pursuant to Louisiana law. A corporation, as a juridical person, is separate and distinct from its members or its shareholders. La.C.C. art 24; Riggins v. Dixie Shoring Co., Inc., 590 So.2d 1164, 1167 (La.1991). Corporations have the power to act in furtherance of their purpose, can sue and be sued, and have the power to enter into contracts. LSA-R.S. 12:41.

Cookery had been a tenant of the FMC for more than twenty years when Mr. Wellman/Mr. Collier began their negotiations with Mr. Tufail. For all of these years, Cookery had operated a business out of the leased premises at 812 Decatur Street in the French Quarter pursuant to two successive leases. Both leases prohibited the assignment of the lease without the FMC’s approval. The original lease between Cookery and the FMC (the 1977 lease), however, included a specific provision for corporate tenants. That lease provided that if a corporate tenant transferred the majority of its stock in one transaction, the transaction would be considered an assignment of the lease and would require the approval of the FMC. Significantly, this provision was not included in the 1997 lease between the parties.

The 1977 lease provision stated, in pertinent part:

Tenant shall not assign this lease or any interest therein, nor sublease the leased premises ... without the prior written consent of the landlord.... In the case of a corporate Tenant, any transfer of this Lease by merger, consolidation, or liquidation and any change in the ownership of, or power to vote, the majority of its outstanding stock, occurring in a single transaction, shall constitute an assignment for the purposes of this paragraph. Assignment or sublease shall also be subject to confirmation of the City Council.

The above-cited italicized language was deleted from the 1997 lease. The 1997 lease reads, in pertinent part:

The Tenant shall not assign, transfer, sublease, pledge, hypothecate, surrender or otherwise encumber or dispose of this lease or estate created by this lease, or any interest in any portion of the same, or permit any other person or persons, company or corporation to occupy the premises.

[19The plain words of the 1977 lease provided that any change in ownership of the majority of the stock of Cookery accomplished by a single transaction would constitute an assignment, which would be subject to confirmation by the City Council. Therefore, absent such confirmation, the sale of the corporate stock to Mr. Tufail, as provided for in the Management Agreement, would have been a violation of that lease.

The matter before us is governed by the 1997 lease. This lease prohibited the tenant from “assigning” or “transferring” the lease without the FMC’s approval. The Management Agreement did not do that. As Cookery was the tenant both before and after the sale of its stock to Mr. Tufail, Cookery neither assigned nor transferred the lease. Moreover, the record demonstrates that Mr. Tufail and his counsel, as well as Mr. Wellman/Mr. Collier and their counsel, were aware that the FMC might take the contrary position — that the 1997 lease did preclude the Management Agreement — because the FMC had so advised Mr. TufaiFs initial counsel early on. Because all parties were aware of the FMC’s potential opposition, Mr. Tufail’s contention that his consent to the agreement is vitiated by error is meritless. Accordingly, we find no error in the cause of the contract sufficient to rescind the sale.

We conclude that the 1997 lease did not prohibit the sale of the stock of Cookery and did not require the approval of the FMC or the City Council, and further that Mr. TufaiFs default on the note and his decision to cancel the lease between Cookery and the FMC was a violation of the Management Agreement between him and Mr. Wellman/Mr. Collier. The trial court erred in finding otherwise.

|2oFor the foregoing reasons, we reverse the denial of Mr. Wellman/Mr. Collier’s motion for judgment on the promissory note and grant summary judgment in favor of them against Mr. Tufail for the balance of the note, plus legal interest from the date of judicial demand until paid. Further, we reverse the granting of partial summary judgment holding Mr. Wellman/Mr. Collier liable on Mr. TufaiFs reconventional demand and dismiss that demand, with prejudice.

Issue III: The May 21, 2012 Judgment

In light of our reversal of the partial summary judgment on liability, we also reverse the judgment rendered by the trial court awarding damages on the reconven-tional demand and order Mr. Tufail to return any amounts paid to him by Mr. Wellman and/or Mr. Collier in satisfaction of that judgment.

Issue IV: The Trial Court’s Refusal to Order Mr. Tufail to Pay Transfer Costs

Mr. Wellman/Mr. Collier contend that the trial court erred by refusing to order Mr. Tufail to pay for the costs assessed by the 24th Judicial District Court (“24th JDC”) to transfer the entire record to the Orleans Parish Civil District Court (“CDC”).

On January 19, 2012, the clerk of the 24th JDC notified Mr. Tufail that in order for the clerk to transfer the portion of the 24th JDC record missing from the CDC record, Mr. Tufail needed to pay $2,149.44 for copies of the trial exhibits in the transferred case. Mr. Tufail took the position that the parts of the record that had not been transferred were not necessary to the CDC action.

On April 2, 2012, the CDC judge granted Mr. Wellman/Mr. Collier’s ex parte motion to secure record when she ordered that “... Tufail take whatever |⅞1 steps are necessary to have the record in this case transferred from the Clerk of the 24th Judicial District Court to the Clerk of this court prior to trial.” Before taking any testimony in the trial on April 11, 2012, the trial court orally denied Mr. Wellman/Mr. Collier’s request to order Mr. Tufail to pay the costs to transfer the remaining records. Speaking to Mr. Wellman/Mr. Collier, the trial judge stated “I think that if you believe that information there is going to help your case, then I would pay for it and have it transferred over here. Otherwise I am not going to order them [Mr. Tufail] to pay for it.” Mr. Wellman/Mr. Collier now contend that the trial court erred in placing the burden on them to pay the outstanding balance due to transfer the portion of the record not originally transferred.

The burden is on Mr. Wellman/Mr. Collier to prove that the trial court erred in denying their motion. Mr. Wellman/Mr. Collier do not cite any law or offer any evidence in support of their argument, other than the notice from the 24th JDC to Mr. Tufail of the outstanding balance. As a court of record, we limit our review to that which is in the record on appeal before us. Tennessee v. Dep’t of Police, 2009-1461, p. 7 (La.App. 4 Cir. 2/24/10), 38 So.3d 354, 358. Costs may be taxed by a rule to show cause and the court may render judgment for costs, or any part thereof, against any party as it may consider equitable. La. C.C.P. art. 1920. A trial court has great discretion in awarding costs and can only be reversed on appeal upon a showing of an abuse of that discretion. Watters v. Department of Social Services, 2008-0977, p. 49 (La.App. 4 Cir. 6/17/09), 15 So.3d 1128, 1162; Jeansonne v. Schmolke, 2009-1467 (La.App. 4 Cir. 5/19/10), 40 So.3d 347, 364. Mr. Well-man/Mr. Collier have failed to show that the trial court abused its discretion in its ruling, and therefore we decline to disturb the trial court’s ruling. Moreover, insofar as our disposition of this appeal makes the transfer of any further records from the 24th JDC unnecessary, this issue is moot.

DECREE

For the foregoing reasons, we reverse the trial court’s judgment of February 6, 2012, insofar as it denied the motion for summary judgment filed by Mr. Well-man/Mr. Collier and granted partial summary judgment in favor of Mr. Tufail on his reconventional demand. We further grant summary judgment in favor of Mr. Wellman/Mr. Collier and against Mr. Tu-fail on the promissory note and order that Mr. Tufail pay the balance due with legal interest until paid. Finally, we dismiss Mr. Tufail’s reconventional demand with prejudice and reverse the trial court’s judgment of May 21, 2012 that awarded damages on the reconventional demand.

REVERSED AND RENDERED.

LOVE, J., Dissents and Assigns Reasons.

LOVE, J.,

Dissents and Assigns Reasons.

_|jl respectfully dissent. On appellate review, summary judgments are reviewed de novo. Duncan v. U.S.A.A, 06-0363, p. 3 (La.11/26/06), 950 So.2d 544, 547. Thus, “a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.” La. Code Civ. Proc. Ann. art. 966(C).

The Management Agreement (“the Agreement”) attempted to transfer ownership of Cookery with the principal asset of the business being the lease with the French Market Corporation (“FMC”) along with $25,000 in inventory and equipment for the $215,000 purchase price. Both parties concede that the cause of the promissory note and the Agreement was the lease. Consequently, the lease and its assignability are at the crux of this case, and the question of whether Mr. Tufail breached the Agreement cannot stand alone, as Mr. Wellman and Mr. Collier (“the sellers”) suggest.

The operative provision of the 1997 lease states:

The tenant shall not assign, transfer, sublease, pledge, hypothecate, surrender, or otherwise encumber or dispose of this lease or estate created by this lease, or any interest or any portion of the same, or permit any other person or persons, company or corporation to occupy the premises.

|j>The sellers assert that the Agreement did not assign or transfer the lease because Cookery remained the tenant before and after the “sale of stock” to Mr. Tufail. This interpretation of the lease ignores the restrictions placed on the tenant. Even if Cookery remained the tenant before and after the sale, the Agreement still violated the lease because it hypothecated an interest in the lease in favor of the sellers. The Agreement gave the sellers the right to cure notice from the FMC, creditors or government agency if Mr. Tufail failed to cure or make a good faith effort to cure. Additionally, it gave the sellers the right to use the stock power to reclaim their interest and take over the lease in the event Mr. Tufail defaulted on the note.

Further, I disagree with the majority’s conclusion that Mr. Tufail is obligated on the promissory note because it overlooks the undisputed fact that the lease was the principal purpose and cause for the Agreement. Because the lease is not transferable, Mr. Tufail paid for a worthless lease and non-existing right. As the trial court pointed out, “it doesn’t make sense for [Mr. Tufail] to give [the sellers] $200,000 for $25,000 and a name.” The value of the stock consisted in large part of the lease of the French Market location, without which the value would be significantly less. Still, the sale of the business constituted both a sale of the lease and an encumbrance of the lease in favor of the sellers should Mr. Tufail default on the promissory note, and thus a violation of the lease terms. I find there is no genuine issue of material fact that the Agreement violated the lease and the FMC terminated the Cookery lease as a result. Accordingly, I would affirm the trial court’s ruling granting Mr. Tufail’s motion for partial summary judgment and the trial court’s May 21, 2012 judgment awarding damages.

      . The FMC was, at various times, a party to this lawsuit. All issues as to the FMC have been resolved.

      . Mr. Tufail also filed a motion to deposit his monthly installments into the court’s registry, but there is no evidence in the record that he ever made any deposits.

      . The judgment also contained rulings on cross motions for partial summary judgment between Mr. Tufail and the FMC, which rulings are not pertinent to this appeal.

      . The denial of a motion for summary judgment is an interlocutory judgment that is not appealable and may not be designated as final by the trial court. See La. C.C.P. arts. 968, 1915. Therefore, the trial court’s designation of the February 6, 2012 judgment as final was proper only as to the granting of partial summary judgment in favor of Mr. Tufail, not as to the denial of Mr. Wellman/Mr. Collier’s motion for summary judgment. However, interlocutory judgments rendered during the course of an action become appealable once a final judgment has been rendered in the case. Because the trial court’s May 21, 2012 judgment is a final judgment, both of the challenged components of the trial court’s February 6, 2012 judgment are properly before us on appeal, as is the May 21, 2012 judgment on damages.

      . As stated previously, Mr. Tufail submitted his September payment late, and it was returned to him.

      . La. C.C. art. 1949 provides that consent may be vitiated by error, fraud or duress. There is no allegation that Mr. Tufail was under duress when he entered into this agreement.

      .In the Amended and Restated Lease, the corporate name of Cookery N'Orleans Style, Ltd. was incorrectly listed as "Cookery N’Orleans Style and Karats.” Cookery N’Orleans Style and Karats was the name of the French Quarter store Cookery operated; it was not the legal name of the corporation. When the lease was renegotiated in 1997, two years before Mr. Wellman and Mr. Collier advertised for a new manager, the lease listed the name of the corporate tenant as "Cookery N'Orleans Style and Karats,” which was not a corporate entity capable of entering into contracts. Mr. Tufail’s lawyer insisted that the name of the corporation be corrected in the lease as a condition precedent to the sale of the stock.
      As required by the Management Agreement, Mr. Wellman and Mr. Collier took action to correct the legal name of the corporation in the lease. At their direction, counsel for Cookery sent a letter to the FMC explaining the error. The record contains this letter, an affidavit from Mr. Collier, the minutes of a meeting of the FMC which reflect approval of the name change, and an amendment to the lease to properly reflect the name of the corporate tenant, which amendment was executed in May of 1999. Once this correction was made, Mr. Wellman, Mr. Collier and Mr. Tu-fail proceeded with the sale of the stock.


source: Caselaw Access Project

author: JUDE G. GRAVOIS, Judge.

license: Public Domain

text:
    Daniel and Roxanne SEGHERS v. LaPLACE EQUIPMENT COMPANY, INC., Colony Specialty Insurance Company, Stoneage, Inc., and XYZ Insurance Company.
    No. 13-CA-350.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 12, 2014.

      Matthew J. Ungarino, David I. Borde-lon, Attorneys at Law, Metairie, Louisiana, for Plaintiffs/Appellants (Daniel and Roxanne Seghers).
    Daniel A. Webb, Laken N. Davis, Attorneys at Law, New Orleans, Louisiana, for Defendants/Appellees (Colony Specialty Insurance Company, LaPlace Equipment Company, Inc. and James Bradley Oubre, Jr.).
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and STEPHEN J. WINDHORST.
   JUDE G. GRAVOIS, Judge.

| ¡¡Plaintiffs-appellants, Daniel and Roxanne Seghers, in this suit for damages resulting from personal injuries allegedly suffered by Mr. Seghers in a work-related accident, appeal the trial court’s granting of several of the defendants’ exceptions of improper venue and prescription. For the reasons that follow, we: (1) affirm the trial court’s judgment granting defendants La-Place Equipment Company, Inc., Colony Specialty Insurance Company, and James Bradley Oubre, Jr.’s exceptions of improper venue and prescription; (2) affirm the trial court’s judgment denying defendant Ashland Services, LLC’s exception of improper venue; (3) reverse the trial court’s judgment granting defendant Ashland Services, LLC’s exception of prescription; and (4) remand the matter to the trial court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

The underlying facts of this case are not in dispute. On July 12, 2011, plaintiff Daniel Seghers, a domiciliary of Jefferson Parish, was allegedly seriously injured while working for FCC Environmental, LLC (“FCC”) at the Rain CII LCarbon, LCC coke plant in Chalmette, St. Bernard Parish, Louisiana. The alleged cause of Mr. Seghers’ injuries was the malfunction or failure of high-pressure water equipment he was using at the time of his accident. Wilkins Calderone, an employee of Ashland Services, LLC (“Ashland”), was also injured in the accident. Mr. Seghers’ employer had rented the high-pressure water equipment from defendant LaPlace Equipment Company, Inc. (“LaPlace Equipment”).

On July 5, 2012, plaintiffs filed the subject petition for damages in St. Charles Parish against LaPlace Equipment, whose principal office was alleged to be in La-Place, St. John the Baptist Parish, and its foreign insurer, Colony Specialty Insurance Company (“Colony”); Stoneage, Inc. (“Stoneage”), a foreign corporation whose principal place of business was alleged to be in Durango, Colorado, and its foreign insurer, Hartford Insurance Company (“Hartford”); Ashland, a domestic corporation, alleged to be domiciled in Jefferson Parish; Mr. Calderone, alleged to be a resident of Marrero, Jefferson Parish; ABC Insurance, an unnamed foreign insurer of Ashland; and XYZ Manufacturing, an unnamed manufacturer of the alleged defective high-pressure water equipment that allegedly caused Mr. Seghers’ injuries. In their petition, plaintiffs specifically requested that service of process be withheld as to all of the named defendants.

On September 18, 2012, despite the fact that it had not yet been served with plaintiffs’ petition, Ashland filed an answer to the petition, generally denying the allegations of the same and asserting several affirmative defenses. Also on September 18, 2012, plaintiffs filed a motion to file a supplemental and amending petition, asserting in the motion that because service had been withheld on the original petition, no answers had yet been filed by the originally-named [ ¡¡defendants. The trial court granted plaintiffs’ motion on September 19, 2012, and on September 24, 2012, plaintiffs filed their “First Supplemental and Amending Petition Before Answer Served,” naming therein James Bradley Oubre, Jr. (“Mr. Oubre”) personally as a new, additional defendant, and alleging therein that he was a resident of Norco, St. Charles Parish, Louisiana, and a manager/employee of LaPlace Equipment.

On October 1, 2012, Ashland filed an amended answer to plaintiffs’ original petition, asserting therein a declinatory exception of improper venue and a peremptory exception of prescription. On October 29, 2012, Ashland filed an answer to plaintiffs’ first supplemental and amending petition, asserting therein exceptions of improper joinder of a party (Mr. Oubre), improper venue, and prescription. On November 5, 2012, LaPlace Equipment, Colony, and Mr. Oubre jointly filed a declinatory exception of improper venue and a peremptory exception of prescription. Plaintiffs thereafter filed oppositions to all of the exceptions. On January 7, 2013, the trial court held a contradictory hearing on the exceptions. At the hearing, the parties argued their respective positions and introduced evidence in support thereof. After taking the matter under advisement, the trial court issued a judgment on January 25, 2013 granting the exceptions of improper venue and prescription filed by LaPlace Equipment, Colony, and Mr. Oubre, denying Ashland’s exception of improper venue, and granting Ashland’s exception of prescription. Plaintiffs moved for a new trial, which was denied. This timely appeal followed.

|fiOn appeal, in their assignments of error, plaintiffs contend that the trial court erred:

1. in finding (a) that Mr. Oubre’s domicile was not St. Charles Parish when the suit was filed, or alternatively, (b) that La. C.C.P. art. 71’s exception to the general venue articles did not apply in this case;
2. in granting the exceptions of prescription where venue had been waived by multiple answers; and
3. alternatively, in not transferring the suit to a court of proper venue.

Because plaintiffs’ assignments of error necessarily require consideration of various related and overlapping issues of fact and law involved in this case, we will address the assignments within our discussion and resolution of the hereinafter particularly-identified issues.

1. As it relates to the trial court’s grant of the exception of improper venue Med by LaPlace Equipment, Colony, and Mr. Oubre, did the trial court err in finding as a matter of fact that Mr. Oubre was domiciled in St. John the Baptist Parish at the time plaintiffs’ suit was filed?

In support of their contention that the trial court erred in granting the exception of improper venue filed by LaPlace Equipment, Colony, and Mr. Oubre, plaintiffs first argue that the trial court erred in finding as a matter of fact that Mr. Oubre was domiciled in St. John the Baptist Parish at the time plaintiffs’ suit was filed. Plaintiffs further argue, alternatively, that the trial court erred in not applying La. C.C.P. art. 71’s exception to the general venue rules to find that Mr. Oubre could still be sued in St. Charles Parish, as he allegedly had changed his domicile from St. Charles Parish to St. John the Baptist Parish within one year immediately prior to plaintiffs’ suit being filed. Finally, plaintiffs argue that the evidence presented at the hearing on the exceptions “at the very least creates a genuine issue of material fact” as to whether Mr. Oubre had moved from St. Charles Parish more than one year immediately prior to plaintiffs’ suit being filed.

17Venue is a question of law, which is reviewed de novo by the appellate court. In re Medical Review Panel Proceedings for the Claim of Tinoco, 03-0272 (La.App. 4 Cir. 9/17/03), 858 So.2d 99, 103.

If grounds for an objection of improper venue do not appear on the face of the plaintiffs petition, the burden of proof is on the defendant to offer evidence in support of his position. La. C.C.P. art. 930; Jewell v. Dudley L. Moore Insurance Co., 95-2453 (La.App. 1 Cir. 6/28/96), 676 So.2d 223, 225; See also Michael F. Smith, CPA v. Alford, 04-0586 (La.App. 1 Cir. 3/24/05), 906 So.2d 674. If evidence is admitted at such a hearing, the exceptions must be resolved on the evidence presented, rather than on the allegations in the petition. Exposition Partner, L.L.P. v. King, LeBlanc Bland, L.L.P., 03-0580 (La.App. 4 Cir. 3/10/04), 869 So.2d 934, 941.

The general rules of venue as to a particular defendant are found in La. C.C.P. art. 42. Louisiana Code of Civil Procedure article 43, on the other hand, provides that the general venue rules in Article 42 are subject to the exceptions provided in La. C.C.P. arts. 71 through 85, inclusive, and as otherwise provided by law. Clarendon Nat. Ins. Co. v. Carter, 39,622 (La.App. 2 Cir. 05/11/05), 902 So.2d 1142, writ denied, 05-1567 (La.01/27/06), 922 So.2d 544.

1 ^Louisiana Code of Civil Procedure article 73, one of the exceptions to the general venue rules, provides that an action against joint or solidary obligors may be brought in a parish of proper venue, under Article 42 only, as to any obligor who is made a defendant. A plaintiff invoking the provisions of Article 73 must allege sufficient facts to prove that the chosen venue is the proper venue for at least one of the joint or solidary obligors. Additionally, the plaintiff is also required to allege facts showing that the various defendants are in fact jointly or solidarily obligated. Strasner v. State, 99-1099 (La.App. 1 Cir. 6/23/00), 762 So.2d 1206, 1211.

In the present case, the record is clear that plaintiffs, domiciliaries of Jefferson Parish, filed suit in St. Charles Parish on July 5, 2012 against the aforementioned originally-named defendants, none of whose domicile or principal place of business was alleged to be in St. Charles Parish. Further, plaintiffs alleged that Mr. Seghers was injured in St. Bernard Parish. Thus, the allegations contained in the original petition failed to disclose any connection or relationship of the matter or the parties to St. Charles Parish. Accordingly, the original petition failed to disclose any basis for proper venue of the suit to be St. Charles Parish, according to La. C.C.P. art. 42.

The record is also clear that service of process of the original petition was withheld as to all of the originally-named defendants, and that none of them were actually served within the applicable prescriptive period. Accordingly, pursuant to La. C.C. art. 3462, the filing of the petition in a court of improper venue did not 19serve to interrupt the applicable one-year prescriptive period in this case for plaintiffs’ personal injury claims.

Plaintiffs argue, however, that the filing of their supplemental and amending petition on September 24, 2012, adding Mr. Oubre personally as a party-defendant, and alleging therein that he was a manager/employee of LaPlace Equipment, that he allegedly personally inspected and maintained “the equipment available for commercial rental,” and that he was a resident of Norco, St. Charles Parish, Louisiana, “cured” the improper venue allegations made in their original petition, because Mr. Oubre was domiciled in St. Charles Parish, either when plaintiffs’ suit was filed, or alternatively, within one year immediately prior thereto, and thus, La. C.C.P. art. 71’s exception to the general venue articles applies to this case.

Domicile of Mr. Oubre

In support of their position that Mr. Oubre was domiciled in St. Charles Parish, either at the time plaintiffs’ original petition was filed, or within one year immediately prior thereto, plaintiffs introduced evidence at the hearing consisting of printouts of entries that appear to have been found on several Internet websites, including “whitepages.com,” “411.com,” and “yp.com,” that purportedly list a particular Norco address in St. Charles Parish for Mr. Oubre as of December 27, 2012. Plaintiffs also introduced an Act of Donation from Mr. Oubre to his ex-wife Jill dated August 5, 2012, whereby he conveyed his ownership interest in and to that particular Norco property to Ms. Oubre.

Mr. Oubre countered by introducing evidence at the hearing to show that he was not domiciled in St. Charles Parish at all times relevant hereto. First, Mr. Oubre filed an affidavit wherein he attested that he had been residing at a Main |inStreet address in LaPlace, St. John the Baptist Parish, prior to July 5, 2012, the date plaintiffs’ suit was filed. He further introduced evidence of his 2006 purchase of the Main Street property in LaPlace. He also introduced utility bills from Comcast (cable), Atmos Energy (gas), and Entergy (electricity) showing that he had utility service at the LaPlace Main Street residence in December of 2011 and January of 2012. He further introduced a statement from his homeowners’ association for his LaPlace residence showing that he was assessed and paid association dues for the fourth quarter of 2011, as well as the first quarter of 2012. He also introduced a Consent Judgment from his divorce proceeding with his ex-wife Jill indicating that she was awarded exclusive use of the Nor-co homesite as of September 29, 2010.

In its judgment, the trial court found that the evidence introduced at the hearing on the exceptions supported the conclusion that Mr. Oubre was domiciled in St. John the Baptist Parish at the time plaintiffs’ suit was filed. Upon review, we find no error in the trial court conclusion in this regard. Plaintiffs’ “evidence” introduced at the hearing consisted of entries from “public” Internet websites, the veracity of which was not proven. The Act of Donation plaintiffs introduced, showing that Mr. Oubre transferred his interest in the parties’ former homesite to his ex-wife on August 15, 2012 pursuant to the Consent Judgment between the parties rendered on September 29, 2010 (but not signed until August 19, 2011) introduced by Mr. Oubre, proves only the date of that transfer and does not tend to prove, one way or another, Mr. Oubre’s domicile as of that time.

Applicability of La. C.C.P. art. 71

Plaintiffs also argue that La. C.C.P. art. 71’s exception to the general venue rules applies in this case. That article allows for an action against an individual |nwho has changed his domicile from one parish to another to be brought in either parish for a period of one year from the date of the change. However, upon review, we find that the evidence introduced by plaintiffs at the hearing on the exceptions, as detailed above, did not bear on any issue other than Mr. Oubre’s alleged domicile as of the date plaintiffs’ suit was filed. Further, the Consent Judgment introduced by Mr. Oubre confirms that Ms. Oubre was awarded exclusive use of the Norco homesite as of September 29, 2010, which is more than one year prior to when plaintiffs’ suit was filed. Thus, plaintiffs’ arguments on this issue are without merit.

Applicability of La. C.C.P. art. 1153

Plaintiffs also argue that their supplemental and amending petition relates back to the filing of the original petition, pursuant to La. C.C.P. art. 1153, which provides that when the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading. The fact that it has been found that Mr. Oubre was not in fact domiciled in St. Charles Parish at the time plaintiffs’ suit was filed, nor within one year immediately prior thereto, is fatal to plaintiffs’ argument that their supplemental and amending petition should relate back, as it too was filed in an improper venue. Thus, plaintiffs’ arguments on this issue are without merit.

Effect of adding Mr. Oubre personally as a party-defendant

Additionally, plaintiffs argue that the amended petition that added Mr. Ou-bre personally as a party-defendant alleging that he was the manager/employee 1 1!8of LaPlace Equipment and that he personally inspected and maintained “the equipment available for commercial rental,” establishes that Mr. Oubre owed a duty of personal care towards Mr. Seghers, such that he should be liable personally for the corporation’s negligence. Plaintiffs further assert that “due to an administrative error,” Mr. Oubre was not included as a party-defendant in the original petition. In opposition to these arguments, Mr. Ou-bre submitted a second affidavit wherein he attested that he was the President of LaPlace Equipment, and that he did not personally or specifically select the subject equipment for rental, nor was he personally involved in the subject rental. The trial court’s written judgment fails to specifically address this issue.

Upon review, we find no merit to plaintiffs’ argument on this issue. This is not a case of a substituted or misnamed defendant, such as was addressed in Ray v. Alexandria Mall, Through St. Paul Prop. & Liab. Ins., 434 So.2d 1083 (La.1983), cited by plaintiffs. Here, plaintiffs added a new, additional defendant to the suit, Mr. Oubre, in his individual capacity, who was alleged to be the manager/employee of La-Place Equipment.

Juridical persons, such as corporations and limited liability companies, are distinct from their members. La. C.C. art. 24. Due to the beneficial role of the corporate concept, the limited liability attendant to corporate ownership should be disregarded only in exceptional circumstances. As this Court has previously held:

Before the corporate entity is disregarded on the basis it is simply the alter ego of the member, proof of fraud or deceit is usually required. The corporate entity may also be disregarded when the individualities of the corporation and member cease to exist. (Citations omitted.)

Prasad v. Bullard, 10-291 (La.App. 5 Cir. 10/12/10), 51 So.3d 35, 40. Plaintiffs’ petition, as amended, does not allege fraud or deceit, nor does it assert facts that | ^suggest that Mr. Oubre had a personal duty towards Mr. Seghers separate from his corporate duties. Additionally, Mr. Ou-bre attested in his second affidavit that he did not personally select the equipment that was rented to Mr. Seghers’ employer, nor was he directly involved in the subject rental. Thus, there is no factual basis in plaintiffs’ petition, as amended, upon which to ignore the corporate identity in this case. Thus, plaintiffs’ arguments on this issue are without merit.

Notice of claim to Mr. Oubre

Additionally, plaintiffs argue that Mr. Oubre was put on notice that the original suit had been filed, and thus was not prejudiced by later being named personally as a defendant in the suit after the prescriptive period had elapsed. We note, however, as did the trial court, that La-Place Equipment and its insurer were not served with citation and process in this suit until October of 2012, well after the expiration of the prescriptive period. Thus, plaintiffs’ arguments on this issue are without merit.

Plaintiffs also argue that Mr. Oubre should have been placed on notice that a suit could be brought against him personally as a result of a pre-suit letter that was sent by plaintiffs’ counsel to a Mr. Jerry Koff of Colony (LaPlace Equipment’s insurer) dated April 26, 2012 requesting a response from Colony to plaintiffs’ settlement offer. While this letter appears to relate to a pending claim against LaPlace Equipment, there is nothing in this letter that would put anyone on notice that a suit could be filed against Mr. Oubre in his personal capacity. Accordingly, we find no merit to plaintiffs’ argument on this issue.

Creation of a material issue of fact

Finally, plaintiffs also argue that the totality of the evidence introduced at the hearing “at the very least creates a material issue of fact as to whether [Mr. 114Oubre] vacated his admitted premises in St. Charles Parish more than a year prior to filing the lawsuit.” Material issues of fact, appropriately considered in the context of a motion for summary judgment, are not appropriately considered in the context of an exception of improper venue.

Conclusion

Accordingly, for the reasons set forth above, the trial court’s judgment granting the exception of improper venue filed by LaPlace Equipment, Colony, and Mr. Ou-bre is hereby affirmed.

2. Did the trial court err in granting LaPlace Equipment, Colong, and Mr. Oubre’s exception of prescription?

Plaintiffs also contend that the trial court erred in granting LaPlace Equipment, Colony, and Mr. Oubre’s peremptory exception of prescription. As it has been found that Mr. Oubre was domiciled in St. John the Baptist Parish at the time plaintiffs’ suit was filed, and for more than one year prior thereto, it follows that, pursuant to La. C.C. art. 3462, since plaintiffs’ suit against these defendants was not commenced in a court of competent venue and because none of these defendants were actually served by process within the applicable prescriptive period (one year from Mr. Seghers’ accident), the trial court properly granted the exception of prescription filed by these defendants.

3. Did the trial court err in granting Ashland’s exception of prescription?

Plaintiffs also contend that the trial court erred in granting Ashland’s exception of prescription “where venue had been waived by multiple answers.” Here, plaintiffs argue that Ashland waived the improper venue by answering plaintiffs’ original petition prior to filing their exception of improper venue.

|1sUpon review, we find that plaintiffs are correct that, pursuant to La. C.C.P. art. 928, Ashland waived the improper venue by answering plaintiffs’ original petition prior to filing its declinatory exception of improper venue. The trial court agreed with plaintiffs’ arguments on this issue, and properly denied Ashland’s exception of improper venue. Plaintiffs thus argue that since Ashland waived any objections it may have had as to venue by filing its answer prior to filing its exception of improper venue, it cannot raise improper venue for the first time by excepting to the supplemental and amending petition filed by plaintiffs, citing Randell v. Prince, 460 So.2d 96 (La.App. 3 Cir.1984). Upon review, we agree with plaintiffs’ arguments that, as the court found in Randell, “venue is waivable in all cases, except those actions where venue is made jurisdictional by specific articles of our Code of Civil Procedure, and that all objections to venue are raised by the declinatory exception which shall be filed before the answer.” Randell, 460 So.2d at 97 (citing Stutts v. Liberty Mutual Insurance Co., 416 So.2d 1326 (La.App. 3 Cir.1982), and La. C.C.P. arts. 44, 925, and 928). As similarly found in Randell, it is evident that a timely filed exception to venue by Ashland would have been maintained in this case. As noted above, plaintiffs’ original petition, upon being filed, was amenable to an exception of venue, as the allegations contained in the original petition failed to disclose any connection or relationship of the matter or the parties to St. Charles Parish. Accordingly, the original petition failed to disclose any basis for proper venue of the suit to be St. Charles Parish, according to La. C.C.P. art. 42. As Ashland failed to follow the statutory requirements of our Code of Civil Procedure, ie., filing the declinatory exception of improper venue before answering, Ashland waived venue in this case.

|1fiAs Ashland waived the improper venue in this case by filing an answer to plaintiffs’ original petition prior to filing its exception of improper venue, we find that venue is thus to be considered proper in this case as to Ashland. As such, pursuant to La. C.C. art. 3462, since suit against Ashland was commenced in a court of competent jurisdiction and proper venue, the trial court erred in granting Ashland’s exception of prescription. Accordingly, the trial court’s judgment granting Ashland’s peremptory exception of prescription is hereby reversed and the matter is remanded to the trial court for further proceedings consistent with this opinion.

4. Should the trial court have transferred plaintiffs’ suit to a court of proper venue?

Plaintiffs also contend, alternatively, that even if the trial court properly granted LaPlace Equipment, Colony and Mr. Oubre’s exception of improper venue, it should not have dismissed plaintiffs’ claims against these defendants, but rather should have transferred plaintiffs’ suit to a court of proper venue, particularly St. John the Baptist Parish, since Mr. Oubre was purportedly then domiciled in St. John the Baptist Parish. Plaintiffs argue that they did not knowingly file their suit in the wrong venue, but rather made good faith, diligent efforts to ascertain Mr. Oubre’s personal address and domicile, which appeared to them at that time to be St. Charles Parish.

Upon review, we disagree with plaintiffs arguments on this issue. Plaintiffs’ argument here ignores the fact that, as found herein, the claims asserted in plaintiffs’ original petition (which as noted above did not name Mr. Oubre personally as a party-defendant) prescribed because the petition was filed in a court of improper venue and none of the originally-named defendants were served with | ^citation and service of process within the applicable prescriptive period. As previously found herein, the filing of the amended petition after the prescriptive period had elapsed did not revive plaintiffs’ already-prescribed suit as to these defendants. Accordingly, since plaintiffs’ suit had already prescribed as to LaPlace Equipment, Colony, and Mr. Ou-bre, the trial court did not err in not transferring the suit to a court of proper venue.

CONCLUSION

For the reasons assigned herein, we hereby: (1) affirm the trial court’s judgment granting defendants LaPlace Equipment Company, Inc., Colony Specialty Insurance Company, and James Bradley Oubre, Jr.’s exceptions of improper venue and prescription; (2) affirm the trial court’s judgment denying defendant Ash-land Services, LLC’s exception of improper venue; (3) reverse the trial court’s judgment granting defendant Ashland Services, LLC’s exception of prescription; and (4) remand the matter to the trial court for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

      . On July 24, 2012, Mr. Seghers' employer, FCC, and its workers' compensation insurer intervened in the suit, seeking recovery of workers' compensation benefits paid to Mr. Seghers as a result of the subject accident; the intervention, however, is not at issue in this appeal.

      . On October 30, 2012, defendants Stoneage and Hartford answered plaintiffs' original and supplemental and amending petitions. Stoneage and Hartford did not except to plaintiffs’ petitions and thus are not involved in this appeal.

      . La. C.C.P. art. 42 provides:
      The general rules of venue are that an action against:
      (1) An individual who is domiciled in the state shall be brought in the parish of his domicile; or if he resides but is not domiciled in the state, in the parish of his residence.
      (2) A domestic corporation, a domestic insurer, or a domestic limited liability company shall be brought in the parish where its registered office is located.
      (3) A domestic partnership, or a domestic unincorporated association, shall be brought in the parish where its principal business establishment is located.
      (4) A foreign corporation or foreign limited liability company licensed to do business in this state shall be brought in the parish where its principal business establishment is located as designated in its application to do business in the state, or, if no such designation is made, then in the parish where its primary place of business in the state is located.
      (5) A foreign corporation or a foreign limited liability company not licensed to do business in the state, or a nonresident who has not appointed an agent for the service of process in the manner provided by law, other than a foreign or alien insurer, shall be brought in the parish of the plaintiffs domicile or in a parish where the process may be, and subsequently is, served on the defendant.
      (6) A nonresident, other than a foreign corporation or a foreign or alien insurer, who has appointed an agent for the service of process in the manner provided by law, shall be brought in the parish of the designated post office address of an agent for the service of process.
      (7) A foreign or alien insurer shall be brought in the parish of East Baton Rouge.

      . Plaintiff was injured on July 5, 2011. The judgment under review on appeal states that LaPlace Equipment was not served until October 8, 2012, Colony was not served until October 3, 2012, and Ashland was not served until October 15, 2012, all of which are well past the one-year prescriptive period in this case.

      . La. C.C. art. 3462 provides, in pertinent part: "Prescription is interrupted ... when the obligee commences action against the ob-ligor, in a court of competent jurisdiction and venue. If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.”

      . La. C.C.P. art. 71 provides: "An action against an individual who has changed his domicile from one parish to another may be brought in either parish for a period of one year from the date of the change, unless he has filed a declaration of intention to change his domicile, in the manner provided by law.”

      . At the hearing on the exceptions, the trial judge informed the parties that he had presided over Mr. and Mrs. Oubre's divorce proceeding several years earlier and was fully aware of the proceedings conducted in that matter.

      . La. C.C.P. art. 1153 provides: "When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.”

      . We note that plaintiffs’ appellate brief alleges that Mr. Oubre was the "president/director’' of LaPlace Equipment, which is different from the allegations made in plaintiffs' supplemental and amending petition.

      . The letter in question is addressed to Colony only.

      . Louisiana law is clear that waiver of venue by one defendant does not preclude another defendant from objecting to venue. See Spott v. Otis Elevator Company, 601 So.2d 1355, 1360 (La.1992).

      . La. C.C.P. art. 928(A) provides, in pertinent part: "The declinatory exception ... shall be pleaded prior to or in the answer and, prior to or along with the filing of any pleading seeking relief other than entry or removal of the name of an attorney as counsel of record, extension of time within which to plead, security for costs, or dissolution of an attachment issued on the ground of the non-residence of the defendant, and in any event, prior to the confirmation of a default judgment.”

      . We note that Ashland filed an answer to the original petition prior to filing a declinato-ry exception to that petition. However, regarding plaintiffs’ supplemental and amending petition, which added a new defendant, Ashland filed an exception of improper join-der of Mr. Oubre in its answer thereto, which is proper under La. C.C.P. art. 928, as well as exceptions of improper venue and prescription.


author: ROBERT A. CHAISSON, Judge. JOHNSON, J.,

text:
    Scott SIGUR, Sr. v. Talia SIGUR.
    No. 13-CA-482.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 12, 2014.

      Keith R. Credo, Michael Baham, Attorneys at Law, Metairie, Louisiana, for PlaintiffiAppellant.
    Michael A. Rosenblatt, Attorney At Law, Gretna, Louisiana, for Defendant/Ap-pellee.
    Panel composed of Judges MARC E. JOHNSON, ROBERTA. CHAISSON, and ROBERT M. MURPHY.
   ROBERT A. CHAISSON, Judge.

12This is an appeal by Scott Sigur, Sr. of a community property partition judgment between him and his ex-wife, Talia Sigur. For the following reasons, the judgment is affirmed in part, vacated in part, and remanded.

FACTS AND PROCEDURAL HISTORY

After a community property partition trial, the trial court rendered judgment establishing the values of all items of community property and assigning those items to each of the respective parties. The judgment further ordered that Mr. Sigur pay to Mrs. Sigur an equalizing payment of $755.14. Included in the calculation of the equalizing payment was Mr. Sigur’s retirement plan, which at the time of trial had a current value of $18,313.50. The trial court assigned this asset to Mr. Sigur and gave Mrs. Sigur a credit of $9,156.75, representing one-half of the then current value of the retirement plan. The judgment also contained a notation stating “20,000 From Mike Sigur: Gift.”

IsSubsequent to the rendition of the judgment, Mrs. Sigur filed a motion to amend the judgment. The trial court then rendered an amended judgment changing the equalizing payment due by Mr. Sigur to $12,343.40, and ordering that the equalizing payment be made within 30 days.

Mr. Sigur now appeals both judgments and urges three assignments of error. He first contends that the second judgment is an absolute nullity, pursuant to La. C.C.P. art. 1951, because it makes substantive changes to the original judgment that are not allowed except upon a motion for new trial, after notice and a hearing. Second, he contends that the credit of $9,156.75 given to Mrs. Sigur for one-half of the current value of the retirement plan is improper because it does not account for taxes. Third, he argues that it was manifest error to find that the $20,000 advanced by his father for repairs to the community house was a gift rather than a loan, and alternatively, if it was a gift, then it was a gift made to him only, and therefore should have been treated as his separate property.

DISCUSSION

We first address the question of the $20,000 provided by Mr. Sigur’s father for repairs to the family home. Mr. Sigur contends that the trial judge was manifestly erroneous in deciding that these funds were a gift to the community, rather than either a loan to the community that the community must repay, or alternatively, a gift only to Scott Sigur, for which separate property he is entitled to be reimbursed by the community. Where the manifest error standard of review is applicable, the inquiry is not whether the appellate court, had it been sitting as the trier of fact, would have made different findings; it is rather whether the findings |4made by the trier of fact have a reasonable basis on the record as a whole. Stobart v. State through Dept. Transp. And Development, 617 So.2d 880 (La.1993).

The funds at issue were allegedly provided by Mr. Sigur’s father for repairs and remodeling of a house which the couple bought soon after their marriage, and which admittedly was community property. Mr. Sigur attempted to prove that this money was a loan to him and his wife, and therefore that this loan was a community debt that must be repaid to Mike Sigur. There was testimony by Mr. Sigur and his father that they intended the money to be a loan to the couple and that this was discussed with Mrs. Sigur. Mrs. Sigur denied that any such discussion had ever taken place and that in the eleven subsequent years of the marriage she had never been told by either her husband or his father that the money was a loan. Mrs. Sigur’s parents testified that when the house was bought it was in need of repairs, and they agreed to do the labor if Mr. Sigur’s father would pay for the materials. There was other testimony by Mike Sigur that the alleged loan would be paid back at $100 per month if the couple had the funds, but that no payments were ever made over the decade since the alleged loan was made. It was also shown that during the marriage, Scott Sigur had sold a business for $130,000, and that he and Talia Sigur had installed a $12,000 pool at their home and purchased a $10,000 television, all without making any payments on the alleged loan.

In her judgment, the trial judge found that the $20,000 provided by Mike Sigur was a gift rather than a loan. This finding was based upon credibility determinations, and a weighing of the evidence and testimony. We find it to be reasonable on the evidence presented and therefore, not manifestly erroneous.

Alternatively, Mr. Sigur argues that if the money provided by Mike Sigur was a gift, then it was a gift to him only and that he is entitled to be reimbursed his | .^separate property by the community. Further, Mr. Sigur appears to argue that the trial court actually found that the $20,000 provided by Mike Sigur was a gift to Scott Sigur only, but that she committed legal error by not ordering the community to reimburse him for his separate property used to benefit the community. Mr. Sigur bases this argument on the following sentence contained in the original judgment: “This non-payment is something the Court also considers when determining that the $20,000 from Mike to Scott was a gift.” We disagree that the phrase “from Mike to Scott” indicates that the trial court found the $20,000 to be a gift to Scott Sigur only. We first note that this sentence appears in a portion of the judgment in which the trial court provides her reasons for finding that the $20,000 provided by Mike Sigur was a gift and not a loan. In the dispositive portion of the judgment in which she calculates the equalizing payment, the judgment simply states “20,000 From Mike Sigur: Gift” and does not clarify whether the gift was to the community or to Scott Sigur only. However, nowhere in the judgment is the $20,000 listed as a debt of the community or as being Scott Sigur’s separate property, and the judgment does not order the community to reimburse this sum to Scott Sigur. We therefore find that the trial court necessarily found it to be a gift to the community for which no reimbursement is owed. Furthermore, for the following reasons, we find this to be a reasonable finding on the evidence presented.

In support of Mr. Sigur’s argument for classification of the $20,000 as a loan, Mike Sigur testified that he provided the money to the young couple in order to help them out with their new home. Scott Sigur’s argument regarding the $20,000 was always that it was a loan to the community in the form of improvements made to the community home. Once the trial court made an adverse ruling to Mr. Sigur that the $20,000 was not a loan, it would be unreasonable to fallow Mr. Sigur to then allege that the $20,000 was put into the community home for his benefit only. In fact, this would directly contradict Mike Sigur’s testimony that the money was provided to the young couple in order to help them out. Furthermore, property in the possession of a spouse is presumed to be community property, although this presumption may be rebutted by proof that it is not such. La. C.C. art. 2340. There was no evidence to suggest that Mike Si-gur intended the $20,000 to be a gift only to his son, and therefore the presumption that the funds became community property when incorporated into the community home was not rebutted. The trial court’s finding that the $20,000 provided by Mike Sigur was a gift to the community, implicit in the judgment, is a reasonable one and not manifestly erroneous, and we therefore affirm it.

The second alleged error concerns the inclusion of Mr. Sigur’s retirement account in the calculation of the equalizing payment, rather than a division in-kind of this account one-half to each party. The assertion here is that although the total pre-distribution value of the account was $18,313.50 at the termination of the community, thus making the pre-distribution value of Mrs. Sigur’s one-half share $9,156.75, if this account is to be included in the calculation of the equalizing payment, then these amounts should be reduced to account for taxes. Otherwise, Mrs. Sigur will receive the full pre-distri-bution, pre-tax value of her one-half share of the account, and the tax burden on her share of the account will be shifted to Mr. Sigur to his detriment, resulting in an unfair advantage to Mrs. Sigur.

In Hannan v. Hannan, 99-842 (La.App. 1 Cir. 5/12/00), 761 So.2d 700, a similar situation was presented. There the lower court had awarded one-half of the wife’s retirement plan to the husband, with the further proviso that the wife would |7be liable for any taxes and/or penalties due to early withdrawal of the funds. The appellate court set aside this provision on grounds that community assets must be divided equally as per La. R.S. 9:2801. We agree with this holding. In the case before us, inclusion of the retirement account, at pre-tax values, in the calculation of the equalizing payment results in an inequitable division of this asset. Since no evidence was submitted by either party from which the trial court could determine the tax burden on these funds, the trial court should have excluded this asset from the equalizing calculation and divided it in-kind between the parties pursuant to the Sims formula. See Sims v. Sims, 358 So.2d 919 (La.1978).

We therefore vacate that portion of the judgment that assigned Mr. Sigur’s retirement account to him and gave Mrs. Sigur a credit for one-half of the current, pre-tax value of the account in the equalizing calculation. Since division of the retirement account pursuant to the Sims formula may be dependent upon factors that are not in the appellate record, it is necessary that we remand the matter to the district court with instructions to exclude the retirement account from the calculation of the equalizing payment, divide the retirement account in-kind between the parties pursuant to the Sims formula, and then recalculate the equalizing payment after exclusion of the retirement account from the equation. Since we are ordering a recalculation of the equalizing payment, we likewise vacate that portion of the judgment that ordered the equalizing payment to be made within 30 days, and remand to the district court with instructions to reconsider this issue once recalculation of the amount of the equalizing payment has been made.

As to the first assignment of error regarding the nullity of the amended judgment, we first note that the valuation and distribution schedules of all assets | sand liabilities of community property are exactly the same in both judgments. The only changes between the original judgment and the amended judgment were the amount of the equalizing payment and the provision that it be paid within 30 days. Since we are ordering a recalculation of the equalizing payment, and setting aside the provision for payment within 30 days, and since the two judgments are otherwise identical in all other respects, Mr. Sigur’s first assignment of error is moot and it is not necessary that we address the merits of his argument.

CONCLUSION

For the foregoing reasons, we vacate that portion of the judgment that assigned Mr. Sigur’s retirement account to him and gave Mrs. Sigur a credit for one-half of the current, pre-tax value of the account in the equalizing calculation. We likewise vacate that portion of the judgment that ordered Mr. Sigur to make the equalizing payment to Mrs. Sigur within 30 days. In all other respects, we affirm the judgment and remand the matter to the district court with instructions to exclude the retirement account from the calculation of the equalizing payment, divide the retirement account in-kind between the parties pursuant to the Sims formula, recalculate the equalizing payment after exclusion of the retirement account from the equation, and, finally, to reconsider the issue of the time frame for payment of any recalculated equalizing payment due, if any.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

JOHNSON, J., Dissents, In Part, With Reasons.

JOHNSON, J.,

Dissents, In Part, With Reasons.

hi, respectfully, dissent in part from the majority opinion on the issue of whether the $20,000.00 provided by Mike Sigur was a gift to Scott Sigur personally or a gift to the community.

In the majority opinion, the following is stated regarding the classification of the $20,000.00:

In the dispositive portion of the judgment in which she calculates the equalizing payment, the judgment simply states, “20,000 from Mike Sigur: Gift[,]” and does not clarify whether the gift was to the community or to Scott Sigur only. However, nowhere in the judgment is the $20,000 listed as a debt of the community or as being Scott Sigur’s separate property, and the judgment does not order the community to reimburse this sum to Scott Sigur.

Without any support from the trial court’s judgment, the majority opinion then concludes that the trial court “necessarily” found the $20,000.00 to be a gift to the community.

Instead of making the assumption that the trial court “necessarily” found the $20,000.00 from Mike Sigur to be a gift to the community, I would remand the issue to the trial court for clarification of its judgment. I am of the opinion that this Court cannot determine that the trial court was not manifestly erroneous without having the trial court clarify its classification of the money. There is no finding by the trial court that the money is community property or Scott’s separate property; thus, there is essentially no ruling to review under the manifest error standard.

| therefore, I would remand the issue of whether the $20,000.00 provided by Mike Sigur was a gift to Scott Sigur personally or a gift to the community the trial court for clarification of the judgment. In all other respects, I agree with the majority opinion.

      . The motion to amend judgment was not made part of the appellate record, but the parties do not dispute that it was filed by Mrs. Sigur and that an amended judgment was rendered without notice to Mr. Sigur or a hearing on the motion.

      . The parties do not dispute that at the time of the dissolution of the community, Mr. Si-gur’s entire retirement account was community property and that each party had a one-half interest in that account. We note, however, that depending upon factors such as Mr. Sigur’s continued employment after termination of the community, the parties’ proportional interests in this account may have changed.

      . As pointed out by Justice Tate in Sims, nothing prevents the parties from agreeing between themselves upon a proper current valuation of the retirement account for purposes of achieving a conventional partition at this time.


author: HANS J. LILJEBERG, Judge.

text:
    Christy DAVIS, Individually and on Behalf of her Deceased Child, Terance Augustine v. Steve CARAWAY in his Capacity as Chief of Police of the City of Kenner, City of Kenner, Lasonya Lathers, Individually and on Behalf of her Minor Child, Charles Lathers & Nicole Wilson, Individually and on Behalf of her Minor Child, Tory Clark.
    No. 13-CA-619.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 12, 2014.
    Sharry I. Sandler, Attorney at Law, New Orleans, Louisiana, for Plaintiff/Appellant.
    Patricia S. Leblanc, Deborah A. Villio, Attorneys at Law, LeBlanc Butler LLC, Metairie, Louisiana, for Defendant/Appel-lee.

      Panel composed of Judges SUSAN M. CHEHARDY, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

| ^Plaintiff, Christy Davis, individually and on behalf of her deceased child, Terance Augustine, appeals the trial court’s judgment sustaining the Peremptory Exception of No Cause of Action filed by defendant, the City of Kenner, and dismissing her claims against it. For the following reasons, we dismiss the appeal as untimely.

DISCUSSION

LSA-C.C.P. art. 2087 provides that a devolutive appeal may only be taken within 60 days of either: 1) the expiration of the delay for applying for a new trial, if no application has been timely filed; or 2) the date of the mailing of the notice of the court’s refusal to grant a timely filed application for a new trial. Falkins v. Jefferson Parish School Board, 97-26, p. 2 (La.App. 5 Cir. 5/9/97), 695 So.2d 1005, 1006. The appeal delays set forth in LSA-C.C.P. art. 2087 are not prescriptive periods that are subject to interruption; rather, these time limits are | ¡¡jurisdictional. Martin v. Frieberger, 02-188, p. 3 (La.App. 5 Cir. 6/26/02), 822 So.2d 810, 811. The failure to file a devolutive appeal timely is a jurisdictional defect in that neither this court nor any other court of review has the jurisdictional power and authority to reverse, revise, or modify a final judgment after the time for filing a devolutive appeal has elapsed. Id.; Parish of Jefferson v. McGee, 11-76, p. 4 (La.App. 5 Cir. 5/24/11), 67 So.3d 640, 642; Baton Rouge Bank & Trust Co. v. Coleman, 582 So.2d 191, 192 (La.1991).

In the present case, no motion for new trial was filed in the trial court. Accordingly, in order to preserve her right to appeal, Ms. Davis had to file her Motion for Appeal within 60 days of the expiration of the delay for applying for a new trial. The delay for applying for a new trial is seven days, exclusive of legal holidays, commencing to run on the day after the clerk has mailed the notice of judgment. LSA-C.C.P. art. 1974.

The judgment sustaining the Peremptory Exception of No Cause of Action was signed by the trial judge on December 11, 2012, and notice of signing of judgment was issued and mailed on that same date. Ms. Davis did not file her Motion for Appeal until February 26, 2013, which was beyond the time delays set forth in LSA-C.C.P. art. 2087.

Absent a timely motion for appeal, the appellate court lacks jurisdiction over the appeal. Falkins, 97-26 at 2, 695 So.2d at 1006; Guillot v. Consolidated Freightways, 583 So.2d 113, 114 (La.App. 5 Cir.1991). An appellate court may, on its own motion, recognize its lack of authority to consider an untimely appeal and dismiss it. Martin, 02-188 at 2, 822 So.2d at 811; State Farm Mut. Auto. Ins. Co. ex rel. Robinson v. Jimenez, 98-1057, p. 3 (La.App. 5 Cir. 1/26/99), 726 So.2d 465, 466.

|4On January 8, 2014, this Court issued an order to plaintiff to show cause, by brief only, why her appeal should not be dismissed as untimely. On January 21, 2014, Ms. Davis filed a brief with this Court in opposition to the dismissal of her appeal. In her brief, Ms. Davis asserts that she requested written reasons for judgment on December 11, 2012, and the trial court’s written reasons were signed on January 25, 2013 and mailed on January 28, 2013. She asserts that she timely filed her Motion for Appeal on February 26, 2013, within 30 days of receiving the written reasons for judgment. Ms. Davis acknowledges that an appeal is taken from a judgment, not the reasons for judgment, but she claims that in limited circumstances, appeal deadlines “should stem from the issuance of written reasons for judgment when the judgment itself is devoid of enough information from which a party can meaningfully determine whether appeal is necessary.”

While we have considered Ms. Davis’s argument, we find it to be without merit. This Court has previously stated that there are no provisions in the law that suspend the statutorily mandated time delays for filing an appeal pending a trial court’s issuance of reasons for judgment. Williams v. Atmos Energy Corp., 09-1061, p. 5 (La.App. 5 Cir. 5/11/10), 42 So.3d 409, 411; Ricks v. East Jefferson General Hospital Foundation, Inc., 00-1695 (La.App. 5 Cir. 3/14/01), 783 So.2d 457, 458.

Because Ms. Davis’ Motion for Appeal, filed on February 26, 2013, is not timely, we do not have jurisdiction to consider this appeal. Accordingly, this appeal must be dismissed.

DECREE

For the foregoing reasons, we hereby dismiss this appeal.

APPEAL DISMISSED.